We are still waiting for a formal ruling on the Andersen v. Stability AI defendants’ second round of motions to dismiss, but so far it’s looking like most of the case may be allowed to proceed to discovery. The judge heard oral arguments on May 8, 2024 in this case involving image-generating AI software, a day after issuing a tentative ruling seeming to give the plaintiffs a chance to try to prove up at least some of their claims.

As a brief recap, a class of  visual artists are suing Stability AI, Runway AI, Midjourney, and DeviantArt, alleging that the defendants’ image-generating AI programs or related activity infringed the plaintiffs’  original works in violation of the Copyright Act.  (For additional background, see our most recent update on the case here).  Victory originally seemed unlikely for the plaintiffs after the judge tossed out most of their case in response to the defendants’ first round of motions to dismiss.   But the plaintiffs filed an amended complaint addressing what the judge said was a failure to allege “substantial similarity” by including side-by-side comparisons of their works and the AI programs’ allegedly similar outputs.  After we highlighted some examples here, our readers weighed in on whether they thought the examples were “substantially similar” or not.

Although the judge did not address substantial similarity in his tentative ruling, he wrote that plaintiffs’ allegations that certain defendants used the plaintiffs’ works to train their AI programs “suffices for direct infringement as to Stability, Runway, and Midjourney,” and that “plaintiffs have plausibly alleged facts to suggest that compressed copies…of their works are contained in the versions of the Stable Diffusion” AI program used by the defendants.  The judge stated that “[]the facts regarding how the [AI] models operate, or are operated by defendants, should be tested” after discovery.

The judge chastised the plaintiffs a bit in his tentative ruling, stating that they should have sought permission before trying to add additional plaintiffs to the case.  But he then went on to say that he is inclined to give plaintiffs leave to file a new complaint to add the new plaintiffs with his permission. 

It wasn’t all bad news for the defendants, however.  The judge indicated that he would dismiss some of the plaintiffs’ claims, including those brought under the Digital Millenium Copyright Act (DMCA) and a claim for breach of contract or breach of the implied covenant of good faith and fair dealing against DeviantArt.

According to reports of the May 8 hearing, the defendants worked hard to convince the judge that he should dismiss all of the claims.  The reports suggest that the judge kept his views close to the vest and did not indicate which way he might ultimately rule after more than an hour of argument.

Ultimately, the judge’s tentative ruling is just that: tentative.  We’ll be watching closely to see what the judge’s final decision says.  We suspect other plaintiffs in similar suits will be watching closely as well, given that a final order reflecting the tentative ruling could be persuasive to other judges juggling similar claims.