Artificial Life Imitates Art: How Freelancers Can Combat a Generative AI Fair Use Defense

Generative artificial intelligence (AI) is a developing technology that creates unique images, essays, and other outputs based on a user’s prompt. To train AI to produce such outputs, however, the program requires a large dataset to learn from—datasets that typically contain many human artists’ copyrighted works. AI’s reliance on these datasets potentially implicates copyright law when its outputs bear similarities to human artists’ works. This Note focuses on the legal challenges brought by and available to freelance visual artists, whose livelihoods are particularly vulnerable to AI image generation because they rely on social media and informal work-for-pay relationships. This Note argues that the generally accepted Fair Use analysis that AI outputs are obviously transformative fails to consider the full implications of the Andy Warhol Foundation for the Visual Arts v. Goldsmith decision and the potential impact of AI generated images replacing freelance social media artists. This Note advocates that courts should seize the opportunity of emerging copyright litigation to definitively hold that AI generated images are not inherently transformative.