If your photos were used without your permission, you could have every right to take legal action.
However, the growing popularity and use of AI image generators make things way more complicated than we imagine.
A machine learning company reportedly used a photographer’s work to train their algorithm. One may think that he could sue them. Well, as it turns out, the company allegedly sued him even though it was his stock photos they used without a license.
Earlier this year, German stock photographer Robert Kneschke used Have I Been Trained?, a website that tells you if your photos were used to train AI image generators. He discovered many of his images in the dataset of LAION, a non-profit that makes large-scale machine learning models, datasets, and code. As Profi Foto reports, Knescke asked Laion to remove his work from the training data. But he got a response he didn’t expect: a letter from a law firm Heidrich Rechtsanwälte on behalf of LAION. What’s more, the company allegedly reached out to other photographers with the letter in almost the same form.
In the letter, LAION’s attorney claims that the non-profit is “doing voluntary research with the aim of further developing self-learning algorithms in the sense of artificial intelligence and making them available to the general public,” and that they “do not violate copyright or data protection law.”
LAION “only maintains a database containing links to image files that are publicly available on the Internet, the letter alleges, “but not the image data itself,” Because of this, the company’s attorney claims that the photographer has no right to request image deletion. “There are simply no pictures of our client that could be deleted,” says Heidrich Rechtsanwälte.
“We also point out that our client can assert claims for damages in accordance with Section 97a (4) UrhG if they are unjustified in terms of copyright,” the law firm reportedly told the photographer. And this is exactly what happened! LAION lawyers are now reportedly demanding almost €900 (~$1000 USD) from Kneschke while LAION continues to use his pictures.
“There has been no copyright infringement. The only act of reproduction that our client could have undertaken was of a temporary nature and is covered by the limitations of both Section 44b UrhG and the more extensive Section 60d UrhG. As already stated, our client does not store any copies of the works that could be deleted or about which information could be provided. Our client only found image files on the Internet for the initial training of a self-learning algorithm using so-called crawlers and briefly recorded and evaluated them to obtain information.”
Kneschke points out that it’s interesting that the lawyers mentioned the use of crawlers, considering that most photo agencies forbid it. “This also applies to the pictures that I had complained about,” he told Profi Foto.
“Quite apart from the fact that we are also very excited to see how LAION wants to explain where the association wants links to image thumbnails from, the pictures of which had already been deleted from the picture agencies before the association was founded.”
But LAION reportedly doesn’t give up. Their attorneys told Kneschke that they would not issue a cease-and-desist declaration to their client. He also doesn’t have the right to any information from LAION about his photos that were used for algorithm training. And finally, he may need to pay them for damages.
“Our client fundamentally understands that your client may not like the temporary reproduction of his works,” LAIOn lawyers wrote to Kneschke’s. “Only this has been expressly permitted by the European legislator. We must therefore ask your client to declare that he will refrain from the claims asserted in the letter dated March 29, 2023.”
“By letter dated February 14, 2023, we have already pointed out to your client that our client is entitled to claims for damages in accordance with Section 97a (4) UrhG in the event of an unjustified claim. At the time, our client had refrained from asserting this claim but is now unableto continue to be lenient here. They incurred legal fees for defending against the obviously unjustified warning you issued, which our client will not bear themselves.”
Robert Kneschke commented:
“The AI companies uses copyrighted works en masse so that commercial companies can make a profit from them, and if I, as the author, ask to have my pictures removed from the training data and to fulfill my legal right to information, I should tell them to pay damages. So it is quite fitting that the law firm has threatened that it is ‘inclined to have the matter resolved by a court.’ We are just as ‘inclined’ and are already working on the justification of the claim for the court.”