Assumption of legal fees by Adobe and Shutterstock in the event of a lawsuit: fine line analysis.
Background summary
Several legal proceedings have been initiated against the giants of image-generating artificial intelligence (AI), in particular for copyright infringement (the equivalent of American copyright). These lawsuits have chilled many potential large customers and to allay their doubts, Adobe and Shutterstock recently made headlines with the announcement of legal protections for their customers. The purpose of these legal protections is to cover legal costs in the event of litigation for the violation of a third party's intellectual property rights in connection with the use of image-generative AI from Adobe Firely and Shutterstock.
Here, we provide an initial analysis of the legal protections offered by Adobe and Shutterstock in order to help users better understand their implications.
The case of Adobe: paid and targeted legal protection
Companies that communicate about the training of their AI through licensed or royalty-free content rely on an a prior examination of the images generated. More details are to come, for now the FAQ published by Adobe [1] specifies that this legal protection will only benefit businesses and that it will be offered in the form of a paid service. The conditions and exclusions applicable to this warranty have not yet been disclosed. But to get an idea of the exclusion of liability clauses that could be included in Adobe's legal protection, we can note the remarkable intervention of the Adobe VP before the US Senate on July 12, last year, requesting a new federal law that would penalize users who use generative AI for the specific purpose of imitating the style of an artist. The adoption of such a law would have the effect of placing the responsibility for a violation of the rights of a third party on the AI user rather than on the company that provides the generative AI service... Business to follow.
The case of Shutterstock: legal protection conditional on the validation of images after examination
This is an ex-post review that is offered for images generated by Shutterstock's AI. This generative AI was developed in partnership with OpenAI, a company with which Shutterstock recently renewed its cooperation for another six years (so DALL-E's AI will continue to train on the Shutterstock image bank). Shutterstock users may request a review (performed by a human) of their content to verify that it does not infringe the rights of a third party. Please note, however, that legal protection will only be granted upon validation of this examination. Practice will tell us with what level of severity the images will be deemed eligible or not for this legal protection, since here, the major risk would be a cautious assessment on the part of Shutterstock and therefore the limited effectiveness of its legal protection.
Attention to the principle of non-guaranteed criminal penalties
While infringement actions can be exercised on civil grounds, there is also a criminal component of the offence of counterfeiting detailed in articles L335-1 to L335-9 of the Intellectual Property Code. Fines for counterfeiting can reach €750,000 and can be accompanied by a prison sentence of up to seven years. However, the principle of the personality of sentences in criminal law precludes a person from being compensated for the consequences of his own criminal responsibility.
In other words: no one is criminally responsible except for his own act, and counterfeiting is a crime.
This principle will therefore prevent the costs associated with the criminal liability of the author of an infringement from being borne and will be likely to drastically limit the effect of the commercial guarantee offered in particular by Adobe and Shutterstock.
Prudence is required
Beyond the legal protections offered by Adobe and Shutterstock, it is important to note the importance of specialized legal support. The nuances of intellectual property law, combined with the complexity of generative AI technology, can make assessing the risks inherent in the commercial use of AI-generated creations more technical than it seems.
To take no risks, be sure to seek the advice of an intellectual property specialist trained in the challenges of generative AI. It can help you understand the limits of the legal protections offered by companies that provide generative AI services, such as Adobe and Shutterstock, and identify other measures to avoid the risk of legal proceedings against you.
[1]Link to the Adobe Firefly FAQ