Based on the following article, explain why copying to train a madel isnt infringing: 
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Institute for Intellectual Property & Information Law (IPIL) Symposia
Vol. 61, Issue 2, 2023December 11, 2023 CDT
Copyright Safety for Generative AI
Matthew Sag
Copyright Law
Generative AI
Matthew Sag
Photo by Steve Johnson on Unsplash
Hous. L. Rev.
Matthew Sag, Copyright Safety for Generative AI, 61 Hous. L. Rev. 295 (2023).
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Abstract
Generative Artificial Intelligence (AI) based on large language models such as ChatGPT, DALL·E 2, Midjourney, Stable Diffusion, JukeBox, and MusicLM can produce text, images, and music that are indistinguishable from human-authored works. The training data for these large language models consists predominantly of copyrighted works. This Article explores how generative AI fits within fair use rulings established in relation to previous generations of copy-reliant technology, including software reverse engineering, automated plagiarism detection systems, and the text-data mining at the heart of the landmark HathiTrust and Google Books cases. Although there is no machine learning exception to the principle of nonexpressive use, the largeness of likelihood models suggest that they are capable of memorizing and reconstituting works in the training data, something that is incompatible with nonexpressive use.

At the moment, memorization is an edge case. For the most part, the link between the training data and the output of generative AI is attenuated by a process of decomposition, abstraction, and remix. Generally, pseudo-expression generated by large language models does not infringe copyright because these models “learn” latent features and associations within the training data; they do not memorize snippets of original expression from individual works. However, this Article identifies situations in the context of text-to-image models where memorization of the training data is more likely. The computer science literature suggests that memorization is more likely when models are trained on many duplicates of the same work, images are associated with unique text descriptions, and the ratio of the size of the model to the training data is relatively large. This Article shows how these problems are accentuated in the context of copyrightable characters and proposes a set of guidelines for “Copyright Safety for Generative AI” to reduce the risk of copyright infringement.


I. Introduction
After years of speculation and prediction, we are finally living in a world of generative Artificial Intelligence (AI) that passes the Turing Test. Earlier computer systems for producing text, images, and music lacked the flexibility, generality, and ease of use of the current breed of generative AIs that are based on large language models (LLMs) (also known as foundation models), such as ChatGPT, DALL·E 2, and Stable Diffusion.[1] By entering a few short prompts into ChatGPT, a user can generate plausible analysis of complicated questions, such as defining the literary style of Salmon Rushdie or explaining the facts and significance of Marbury v. Madison.[2]

Figure 1
Figure 1:ChatGPT on Salmon Rushdie
ChatGPT can do more than summarize landmark Supreme Court cases; its facility with style transfer is such that it can translate the same content into a hip-hop style or a fifth-grade reading level.[3] Similarly, a few simple words typed into DALL·E 2 or Midjourney will produce an arresting image of “a cup of coffee that is also a portal to another dimension” or a disturbing portrait of “the future of drowned London.”[4]

Figure 2
Figure 2:DALL·E 2 prompt: “a cup of coffee that is also a portal to another dimension” (left); Midjourney prompt: “the future of drowned London” (right)[5]
LLMs are trained on millions, tens of millions, and perhaps even hundreds of millions of digital objects that are generally eligible for copyright protection.[6] Because this training necessarily involves copying the underlying texts, sounds, and images, questions about the copyright implications of generative AI are inevitable.

It is tempting to mischaracterize generative AI simply as a more flexible version of either Napster or the HathiTrust digital library. Opponents point to the fact that platforms, such as Midjourney, rely on copyrighted inputs, and that upon the receipt of brief and often perfunctory user requests (i.e., prompts), these platforms will convert inputs into digital objects that could easily substitute for items in the original training data.[7] By these lights, generative AI is just another tool of consumer piracy that allows users to benefit from the labor of artists without paying for it. Proponents, on the other hand, are quick to point to cases such as Authors Guild Inc. v. HathiTrust[8] and Authors Guild v. Google,[9] which confirmed the legality of copying to extract metadata on a vast scale and, in the case of Google, with a clear commercial motivation.[10] The metadata derived from library digitization in these cases was used to enhance the searchability of books and as the foundation for digital humanities research—much of which also involved machine learning.[11] Viewed this way, generative AI is exactly the same as the digitization process in HathiTrust: millions of copyrighted works were digitized so that researchers could extract uncopyrightable metadata; that metadata was then used to create new insights and information in the form of a searchable book index and academic articles exploring trends in literature.[12] The analogy to HathiTrust is overly simplistic. A deeper appreciation of the workings of generative AI suggests that the copyright questions are more complicated.

We should embrace this complexity. Although sweeping claims that generative AI is predicated on massive copyright infringement are misplaced, there are specific—but perhaps rare—contexts where the process of creating generative AI may cross the line from fair use to infringement because these large language models sometimes “memorize” the training data rather than simply “learning” from it.[13] To reduce the risk of copyright infringement by large language models, this Article proposes a set of Best Practices for Copyright Safety for Generative AI. This Article focuses primarily on copyright risks in relation to text-to-image generative AI models. Many of the conclusions and recommendations apply with equal force to other forms of generative AI; however, chatbots, code-creation tools, music generation AIs, and multi-modal systems may each raise additional issues and complications meriting more detailed exploration.

This Article proceeds as follows: Part I explains how U.S. law has addressed similar copyright issues in relation to other forms of copy-reliant technology by recognizing that, in general, nonexpressive use is fair use, and thus noninfringing. This Part refutes the suggestion that machine learning, broadly speaking, should be treated any differently from other nonexpressive uses; it then addresses the more plausible argument that the LLMs used in generative AI might demand different treatment because of their potential for memorization. Part II dives into the technical details of generative AI and explains why, in the vast majority of cases, the link between copyrighted works in the training data and generative AI outputs is highly attenuated by a process of decomposition, abstraction, and remix. Generally, pseudo-expression generated by LLMs does not infringe copyright because these models “learn” latent features and associations within the training data; they do not memorize snippets of original expression from individual works. Part III then explores edge cases where copyright infringement by LLMs is not only possible but perhaps likely. In the context of text-to-image models, memorization of the training data is more likely when models are trained on many duplicates of the same work, images are associated with unique text descriptions, and the ratio of the size of the model to the training data is relatively large. This Article shows how these problems are accentuated in the context of copyrightable characters. Finally, Part IV takes the lessons from the previous Parts and restates them as an initial proposal for Best Practices for Copyright Safety for Generative AI.

II. Limits on the Fair Use Status of Machine Learning
A. Nonexpressive Use by Copy-Reliant Technology Is Generally Fair Use
At the time of writing, two of the biggest names in text-to-image AI, Stability AI and Midjourney, face lawsuits accusing them of, among other things, massive copyright infringement.[14] Getty Images is the plaintiff in one suit, and the other is a class action filed by digital artist Sarah Andersen.[15] On the surface, these complaints are more than plausible because it seems obvious that the machine learning models at the heart of these cases were trained on thousands of Getty Images’ copyrighted photos and millions of works by people like Sarah Andersen—all without permission.[16] However, to prevail the plaintiffs must show that a long line of fair use cases upholding similar forms of nonexpressive use by copy-reliant technologies were wrongly decided or do not apply to generative AI.[17]

Courts in the United States have agreed that copying without permission is fair use, and thus noninfringing, in the context of software reverse engineering,[18] plagiarism detection software,[19] and the digitization of millions of library books to enable meta-analysis and indexing.[20] All of these cases involved commercial defendants that made large numbers of exact copies—except for the nonprofit HathiTrust.[21] These are just a few cases, from a body of case law stretching back 300 years to the invention of copyright itself, demonstrating that not all copying is created equal.[22] The Copyright Act gives the owners of copyrighted works the exclusive right to reproduce those works in copies, but this right is expressly subject to the principle of fair use.[23] The fair use doctrine helps make sense of copyright law because otherwise, every mechanical act of reproducing copyrighted works, in whole or in substantial part, would infringe regardless of the purpose or effect of that reproduction. Why should the law fetishize a mechanical or technical action without regard to the motivation for the action and its consequences? The short answer is that it does not. If copyright law made no allowance for commentary, criticism, or parody—to give just three examples—it would inhibit reference to and reinterpretation of existing works and, thus, contradict the utilitarian purpose for which copyright was established.[24]

As I have explored elsewhere, the fair use cases dealing with copy-reliant technology reflect the view that nonexpressive uses of copyrighted works should be treated as fair use.[25] The fair use status of nonexpressive use is not a special exception for the technology sector.[26] Rather, the rationale for allowing for-profit and academic researchers to derive valuable data from other people’s copyrighted works is a necessary implication of the fundamental distinction between protectable original expression and unprotectable facts, ideas, abstractions, and functional elements.[27] Authors Guild, Inc. v. HathiTrust is illustrative.[28] HathiTrust provided a digital repository for the digitized collections of the university libraries participating in the Google Books project.[29] HathiTrust was formed to accelerate research in the digital humanities—an intellectual movement seeking to bring empirical and computational techniques to humanities disciplines, such as history and literature.[30] One of the most important tools for digital humanities research is text data mining. Text data mining is an umbrella term referring to “computational processes for applying structure to unstructured electronic texts and employing statistical methods to discover new information and reveal patterns in the processed data.”[31] In other words, text data mining refers to any process using computers that creates metadata derived from something that was not initially conceived of as data. Text data mining can be used to produce statistics and facts about copyrightable works, but it can also be used to render copyrighted text, sounds, and images into uncopyrightable abstractions. These abstractions are not the same as, or even substantially similar to, the original expression, but in combination, they are interesting and useful for generating insights about the original expression. Accordingly, theorists have argued,[32] and courts have ruled, that technical acts of copying that do not communicate the original expression to a new audience do not interfere with the interest in original expression that copyright is designed to protect.[33] For example, in HathiTrust, the court of appeals explained that:

[T]he creation of a full-text searchable database is a quintessentially transformative use [because] the result of a word search is different in purpose, character, expression, meaning, and message from the page (and the book) from which it is drawn. Indeed, we can discern little or no resemblance between the original text and the results of the HDL full-text search.[34]

A differently constituted panel of the Second Circuit reached much the same conclusion in the Google Books litigation.[35]

The fair use status of text data mining is now so well entrenched that it is recognized by the U.S. Copyright Office,[36] and jurisdictions outside the United States have scrambled to augment their own copyright laws with similar exceptions and limitations.[37] Consequently, an abrupt reversal of the HathiTrust and Google Books precedents seems quite unlikely.[38] However, despite the emerging international consensus that text data mining should not amount to copyright infringement,[39] some have questioned whether the logic and authority of cases such as HathiTrust extend to machine learning[40] or to the particular type of machine learning that underpins generative AI.

B. Machine Learning and Generative AI
1. There Is No Machine Learning Exception to the Principle of Nonexpressive Use
The suggestion that the broad affordance for text data mining as fair use announced in HathiTrust does not apply to machine learning is confounding.[41] There is no principled reason why deriving metadata through technical acts of copying and analyzing that metadata through logistic regression should be fair use, but analyzing that data by training a machine learning classifier to perform a different kind of logistic regression that produces a predictive model should not be.[42] Indeed, digital humanities research using machine learning was one of the primary use cases motivating the creation of the HathiTrust.[43] I cannot speak for the parties or the other amici involved in the HathiTrust and Google Books cases, but the only reason my coauthors and I did not explicitly talk about machine learning in our influential digital humanities briefs filed in those cases was that we thought it would be unnecessarily specific.[44] Digitizing library books to derive valuable but uncopyrightable metadata should constitute fair use because the derived data does not substitute for any author’s original expression. Whether that data is used in more traditional empirical analysis or machine learning is no one’s business.

2. Distinguishing Generative AI
Although there is no reason to think that courts would, or should, apply the principle of nonexpressive use differently to text data mining when it is used in machine learning, it is fair to point out that the rulings in cases such as iParadigms, HathiTrust, and Google Books were predicated on a technological paradigm that now seems quaint.[45] Recent advances in generative AI present at least two challenges to the theory of nonexpressive use. Both relate to the fact that these systems produce much more than information about expression; they are now the engines of new content creation.[46]

Benjamin Sobel argues that AI faces a “fair use crisis” because machine learning models that can create digital artifacts that are broadly equivalent to copyrightable human expression are not nonexpressive.[47] Essentially, he treats expressive outputs as inconsistent with nonexpressive use. However, the fact that LLMs can produce quasi-expressive works does not necessarily negate the application of the nonexpressive use principle.[48] There is no inherent problem with generative AI’s ability to create new content that is equivalent to human expression. For the most part, the copyright implications of the new wave of LLMs are no different from earlier applications of text data mining. Most of the time, when a user enters a prompt into ChatGPT or Midjourney, for example, the model output bears no resemblance to any particular input or set of inputs, except at an abstract and unprotectable level.[49] Accordingly, even though ChatGPT can write moving poetry,[50] and Midjourney can render simple instructions into compelling artworks, these machine learning models still qualify as nonexpressive use so long as the outputs are not substantially similar to any particular original expression in the training data.

If the nonexpressive use framework did not allow the subsequent generation of new noninfringing expression, the digital humanities researchers who currently rely on the rulings in HathiTrust and Google Books could statistically analyze vast libraries of text to generate new insights about literature and society, but they would not be able to write about it afterwards. Such a result would run contrary to the constitutional objective for copyright law “[t]o promote the Progress of Science and useful Arts.”[51] Sobel’s argument that generative AI falls outside the scope of nonexpressive use is mistaken, in my view, because what matters is not whether a copy-reliant technology is used to create something equivalent to human expression; what matters is whether the original expression of the authors of works in the training data is communicated to a new public. New noninfringing expression is not a problem—new expression shows that the system is working.[52]

Nonetheless, there are potential differences between generative AI based on LLMs and the technologies courts have previously regarded as fair use. The critical difference is that, although LLMs do not generally produce pseudo-expressive works that mimic their training data, they may do so under specific circumstances, particularly in the context of copyrightable characters and analogous situations.[53]

C. The Problem of “Memorization”
On February 3, 2023, media-licensing behemoth Getty Images filed a lawsuit in Delaware federal court accusing the generative AI company, Stability AI, of brazen copyright and trademark infringement of Getty’s owned and licensed images “on a staggering scale.”[54] Getty argues that every instance of copying without permission attributable to Stability AI’s training of the Stable Diffusion model amounts to copyright infringement.[55] This broad claim would require the court to reject or distinguish cases like HathiTrust. Significantly, Getty also argues that “Stable Diffusion at times produces images that are highly similar to and derivative of the Getty Images proprietary content that Stability AI copied extensively in the course of training the model.”[56] If true, HathiTrust and Google Books are easily distinguished. Getty illustrates the potential similarity between outputs from the Stable Diffusion model and Getty’s own copyrighted images with the following pair of images in Figure 3.[57]

Figure 3
Figure 3:Getty Images Comparison of training data to model output[58]
On a very cursory inspection, the comparison between the two images seems compelling: these are both pictures of soccer players in broadly similar uniforms, in broadly similar poses, taken from roughly the same angle, with roughly the same depth of field effect. However, looking closer, Getty’s comparison of a spectacular photo (left) of Tottenham Hotspur’s Christian Eriksen getting tackled by Liverpool’s Jordan Henderson—who are clearly identifiable to anyone familiar with international football—and the awkward convulsions of their mutant doppelgangers (right) is unconvincing. The causal connection between the photos is apparent, but the grotesque distortion of the players’ bodies and faces throws the question of substantial similarity into doubt. Substantial similarity requires a quantitative and qualitative assessment, and if we follow the Second Circuit’s approach in Arnstein v. Porter and ask whether the picture on the right “took from [Getty’s photograph] so much of what is pleasing to the [eyes] of lay [viewers], who comprise the audience for whom such [photos are created], that defendant wrongfully appropriated something which belongs to the plaintiff,”[59] the answer is: probably not. The original photo is compelling because of the specific angle of the shot and the way it captures Henderson’s attempts to tackle the ball from Eriksen and the way Eriksen uses his body to block the tackle. It is also compelling because in silhouette the two players form a windmill—making the photo artistic as well as communicative. In the Stable Diffusion photo, the unique perspective is lost, no one is in control of the ball, and there is no tackle nor windmill silhouette—just two bizarre, disfigured football golems haunting the field.

Despite the arguable lack of similarity in their hand-picked example, Getty’s broader point is correct. Even just a few years ago, the notion that a machine learning model would memorize enough details about specific examples in the training data to recreate those examples seemed unlikely.[60] The information loss inherent in reducing the training data down to a model through machine learning should have virtually guaranteed that there could only be an abstract relationship between the inputs and the outputs. As discussed in more detail in the remainder of this Article, LLMs are now so large that we must take seriously the prospect that they may essentially “memorize” particular works in the training data. If the model memorizes the training data, it might communicate original expression from the training data via its output.[61] This is a big deal. If ordinary and foreseeable uses of generative AI result in model outputs that would infringe on the inputs no matter what intervening technological steps were involved, then the nonexpressive use rationale would no longer apply.[62] If training LLMs on copyrighted works is not justified in terms of nonexpressive use, then there is no obvious fair use rationale to replace it, except perhaps in the noncommercial research sector. If LLMs just took expressive works and conveyed that same expression to a new audience with no additional commentary or criticism, or no distinct informational purpose,[63] that would be a very poor candidate for fair use.[64]

III. The Attenuated Link Between Training Data and Model Output
Although every machine learning model is a reflection of its underlying training data, LLMs are (mostly) not copies of their training data; thus, the outputs generated from these models are (mostly) not copies of their training data either. Part III of this Article explains why the parentheticals in the previous sentence were required and what that means for copyright law. But for now, this Part focuses on understanding the connection between LLMs and their training data, and on the various ways in which that connection is ordinarily diluted and complicated.

A. Language Models: An Introduction
The processes by which generative AI models produce convincing text and images might seem unrelated, but they have more in common than almost anyone without a computer science degree could imagine. Everyone reading this Article will likely be familiar with ChatGPT, a text-based LLM created by OpenAI and made available to the general public in late 2022.[65] Although ChatGPT took much of the world by surprise, at its initial release it was simply a refined version of OpenAI’s generative pre-trained transformer version 3 (GPT-3), an autoencoder that had been available to a limited group of registered users since 2020.[66] What’s an autoencoder? Be patient and you will soon find out. But in the meantime, note that Stable Diffusion is also an “autoencoder,” so it must be important.

What’s so special about LLMs? LLMs are machine learning models trained on large quantities of unlabeled text in a self-supervised manner.[67] LLMs are a relatively recent phenomena made possible by the falling cost of data storage and computational power and by a new kind of model called a transformer.[68] One of the key differences between transformers and the prior state of the art, recurrent neural networks (RNNs),[69] is that rather than looking at each word sequentially, a transformer first notes the position of the words.[70] The ability to interpret these “positional encodings” makes the system sensitive to word order and context, which is useful because a great deal of meaning depends on sequence and context.[71] Positional encoding is also important because it facilitates parallel processing; this, in turn, explains why throwing staggering amounts of computing power at LLMs works well for transformers, whereas the returns to scale for RNNs were less impressive.[72] Transformers were also a breakthrough technology because of their capacity for “attention” and “self-attention.”[73] In simple terms, in the context of translation, this means that the system pays attention to all the words in source text when deciding how to translate any individual word. Based on the training data, the model learns which words in which contexts it should pay more or less attention to. Through “self-attention,” the system derives fundamental relationships from input data, and thus learns, for example, that “programmer” and “coder” are usually synonyms, and that “server” is a restaurant waiter in one context and a computer in another.[74] Once trained, models like GPT-3 are useful for a variety of tasks because they have learned all sorts of fundamental relationships without ever being explicitly taught any of them.[75]

The astonishing capabilities of LLMs are mostly a function of scaling. GPT-3 was trained on millions of books, webpages, and other electronic texts, comprising about 499 billion tokens (thinking of tokens as words is not far off) or forty-five terabytes of data.[76] GPT-4 was trained on 1,000 terabytes (or 1 petabyte) of data.[77] Stable Diffusion was trained on somewhere in the order of 2.3 billion captioned images.[78] In both cases, some of the training data was in the public domain or otherwise unrestricted, but most of it was subject to copyright and copied without express authorization.[79] As for the models themselves, GPT-3 contains 175 billion parameters.[80] To put that in context, consider that if each parameter was one second, the model would stretch 5,425 years—roughly from the first cities in Southern Mesopotamia to the present.[81] GPT-4 is said to have 1.8 trillion parameters![82] DALL·E 2 and Stable Diffusion are much smaller, consisting of a mere 3.5 billion and 890 million parameters, respectively.[83]

B. Autoencoding
LLMs essentially “learn” latent or abstract concepts inherent in the training data. The learning involved is only a very loose analogy to human cognition—instead, these models learn from the training data in the same way a simple regression model learns an approximation of the relationship between dependent and independent variables.[84] LLMs are more interesting than regression equations because they model relationships across a ridiculous number of dimensions. LLMs can generate new content by manipulating and combining latent concepts acquired during training and then unpacking them.[85] In nontechnical terms, this is what it means to be an autoencoder.[86] In other words, autoencoding is the process of abstracting latent features from the training data and then reconstructing those features, hopefully in new and interesting combinations.

Autoencoding is the most important feature to grasp in understanding the copyright issues presented by LLMs. To unpack this concept further, it helps to start small. As illustrated in the Figure below, an autoencoder can compress an image, such as a hand-written number, into a compressed representation and then reconstruct something very close to the original number back from the reduced encoded representation.

Figure 4
Figure 4:Autoencoder illustration[87]
GPT, Midjourney, and the like are performing the same compression/decompression trick but without the one-to-one relationship between the inputs and the outputs. When a user prompts a generative AI to create “a cup of coffee that is also a portal to another dimension,” the model combines latent representations of coffee cups and dimensional portals deriving from a multitude of images in the training data tagged with those features or with tags that are conceptually related. In DALL·E 2, changing the prompt to tea and “a gateway to another world” has the interesting result of producing lighter, more optimistic images in a way that suggests that the model also encodes a penumbra of contexts and association with coffee, tea, worlds, and dimensions.

Figure 5(a)
Figure 5(a):Coffee (top) versus tea (bottom) with DALL·E 2
Figure 5(b)
Figure 5(b):Coffee (top) versus tea (bottom) with Midjourney
Figure 5(c)
Figure 5(c):Coffee (top) versus tea (bottom) with Stable Diffusion
This contrast is fascinating on many levels, but the key for copyright purposes is to understand that, in general, this process of abstraction, compression, and reconstitution breaks the connection between the original expression in the model inputs (i.e., the training data) and the pseudo-expression in the model outputs (i.e., the new images). The cups in the images above are not any individual coffee cup; they are a combination of vectors that encode a latent idea of a coffee cup as represented in the training data. Generative AI models know nothing of the taste or smell of coffee, but they encode fundamental relationships between pixels that are more likely in pictures with coffee cups than without.

Another way to come to terms with the concept of the latent image of a coffee cup is to compare a random set of coffee cup images from the Stable Diffusion training data[88] with a newly rendered “cup of coffee that is also a portal to another dimension.” Figure 6 provides this visualization.

Figure 6
Figure 6:From 19 coffee cups (left) to one cup of coffee that is also a portal to another dimension (right)
The coffee cup image on the right of Figure 6 has a vague similarity to some of the coffee cup images on the left. The cup is round, it appears to be made of white ceramic, it has a small single handle, the color of the liquid is essentially black, transitioning to brown. However, beyond these generic features, this cup is not substantially similar to any particular image from the training data.[89]

If the notion of “the latent concept of a cup of coffee” is too trippy, we can explore the idea of latent concepts with a text-based example by contemplating just how much ChatGPT knows about rabbits.

Figure 7
Figure 7:Simon the Rabbit Steps into the Ocean
As the example illustrates, GPT knows that rabbits are found in meadows, live in burrows, hop, hide, and have paws. It also knows that rabbits have a reputation for timidity and are characteristically small. GPT’s latent model of rabbit characteristics is an emergent property of the training data. GPT does not just have a latent model for rabbits, but also of how rabbits relate to other concepts like water and oceans. More impressive still, it has a latent model of different literary forms, and of the feeling of stepping into the ocean! In short, within the 175 billion parameters of the GPT model, there are latent representations of information derived from the training data at varying levels of abstraction.

Does this count as knowledge? In a literal sense, GPT does not know anything, and it would be a dangerous mistake to think of it as an information retrieval tool or as an agent with knowledge and intentions.[90] GPT is a text prediction tool that responds to prompts with statistically well-informed guesses about what the next word should be, and the word after that, and so on. The complexity and potential weirdness of a 175 billion parameter model and the fact that GPT is making statistically well-informed guesses rather than speaking to us in an attempt to convey an internal mental state goes a long way to explaining why it mostly answers in a well-informed but conventional way, but also why it occasionally hallucinates and sometimes seems quite unhinged.[91] With those essential caveats and qualifications aside, if we think of latent representations derived from the training data and encoded in the model as things GPT “knows,” then we can say that GPT knows a lot about specific topics, logical relationships, and literary modes and conventions. When GPT responds to a user prompt, it is, in effect, combining latent representations at different levels of abstraction to produce a statistically well-informed guess about what the next word should look like.

C. Novelty Versus Remix
Some question whether generative AI produces novel artifacts or simply remixes existing content.[92] Generative AI is more like papier-mâché than a collage. In papier-mâché, the artist layers pieces of preprinted—and thus copyrighted—paper with a glue-like substance to create a three-dimensional object. Even when the object reveals hints of the copyrighted works in its substrate, it has no meaningful similarity to any of them. In a collage, by way of contrast, the artist combines disparate pre-existing materials through a process of literal cut-and-paste to create a new image. Some collages are so different from the original works from which they are created that they lack even a substantial similarity; many are sufficiently different that they pass the test of transformative use.[93] The critical difference is that for a collage, it is plausible that the new work could infringe on the copyright of some underlying image; for papier-mâché, it is not.

1. Deriving Latent Characteristics
Text-to-image models such as DALL·E 2, Stable Diffusion, and Midjourney primarily learn a set of latent characteristics associated with image descriptions and then unpack those latent representations to create genuinely new content.[94] In some cases, the model output owes as much to the prompt, the injection of random noise, and guidance from human aesthetic feedback, as it does to the training data.[95] But even when pseudo-expression obviously owes a great deal to the training data, that debt largely consists of uncopyrightable abstractions, not copyrightable expression. The philosophical question of whether pseudo-expression should be considered creative is a distraction from the legal question of whether it amounts to copyright infringement. Even if these models were simply interpolating between specific memorized examples within the training data, the output would only infringe if enough original expression of any particular example were evident in the final product.

Returning to the coffee cup example, there are thousands of images in the Stable Diffusion training data associated with “coffee cup” and related concepts. If there were just one coffee cup in the training data, the model would store what is effectively a compressed version of the image and uncompress it in response to a prompt for “coffee cup.” But because there are so many coffee cups, the model stores a more abstract convergence of the features of each individual image.

Figure 8
Figure 8:From 15 white coffee cups (left) to four images of “coffee cups on white backgrounds” (right)
The image above illustrates the contrast between images with the words “white,” “coffee,” and “cup” in the Stable Diffusion training data and four images produced in Stable Diffusion from the prompt “coffee cups on white backgrounds.” The images on the right-hand side are nothing as simple as a blending together or remix of the training data. The Stable Diffusion model has not simply memorized complicated images involving coffee cups, it has learned something about the latent concept of a coffee cup distinct from cakes, macaroons, sunsets, sunrises, and men with facial hair—all of which can be seen in the training data examples on the left.

2. The Significance of Noise
As we have already seen, the relationship between the copyrighted works used to train LLMs and the output of those models is attenuated by abstraction and recombination.[96] But there is more. The relationship is also attenuated by pseudo-random noise. Adding noise to the input data or intermediate layers of the model can help to regularize the learning process and reduce overfitting.[97] In other words, by adding randomness to the training data, the model is forced to learn more generalizable features that are robust to variations in the input. This can lead to improved performance and generalizability of the model when applied to new, unseen data. The introduction of noise at t=0 (before the first step) means that the unpacked image at t=T (the final step) will be different every time. This is why, for example, eight images of “a dystopian vision of downtown Chicago overgrown with plants and subject to flooding” all look somewhat similar, but are each distinct.

Figure 9
Figure 9:Eight “dystopian visions of downtown Chicago overgrown with plants and subject to flooding” (Midjourney)
Figure 10
Figure 10:Eight “dystopian visions of downtown Chicago overgrown with plants and subject to flooding” (Stable Diffusion)
Figures 9 and 10 were rendered using the same text prompt in Midjourney and Stable Diffusion. There are some differences between the two models, but the copyright analysis is the same. Each dystopian image shown above owes something to the thousands of representations of downtown Chicago and the numerous dystopian cityscapes in the training data. Critically, however, it seems unlikely that any of the images would strike the ordinary observer as substantially similar to any particular image in the training data.

None of this is an absolute guarantee that text-to-image models will never generate infringing material. Indeed, discussed shortly, LLMs can run afoul of copyright law in certain predictable situations. But in general, it seems that today’s generative AI is a lot more than a simple remix tool. Like all machine learning, LLMs are data dependent, but the relationship between the training data and the model outputs is substantially attenuated by the abstraction inherent in deriving a model from the training data, blending latent concepts, and injecting noise before unpacking them into new creations.

IV. Edge Cases Where Copyright Infringement Is More Likely
A. What We Learned from Extraction Attacks
As seen in the previous Part, although LLMs depend on copyrighted training data, the relationship between the training data and model outputs is attenuated by the process of decomposition and abstraction, the blending of latent concepts, and injection of noise. Over a broad range of use cases, this should ensure that the output of these models does not infringe on the inputs. But this is not always the case. Computer scientists have used various “extraction attacks” to show that, at least in some cases, LLMs effectively memorize significant details of some works in the training data.[98] If memorization is possible, so is copyright infringement.[99] Moreover, any more than a trivial amount of memorization jeopardizes any fair use claim these models have under a theory of nonexpressive use.

A recent paper by Nicholas Carlini et al. is representative. Carlini and his coauthors identified 350,000 of the most duplicated images in the Stable Diffusion training data and generated 500 new images using prompts that were identical to the metadata of the original images. Only 109 of the 175 million potential copies could reasonably be considered “near-copies” of an image in the training data.[100] In other words, this particular extraction attack showed evidence of memorization in 0.03% of a sample of images selected for their perceived risk of memorization. The extraction attack succeeded most often when the image in the training data had been duplicated at least 100 times.[101]

In another extraction attack, Carlini and his group identified the 500 most unique tags in the training data of Stable Diffusion and a similar generative AI, Imagen.[102] They found three instances of memorization with Imagen, but none with Stable Diffusion. Expanding their attack, they applied the same methodology to the 10,000 most uncommon tags in the Stable Diffusion training data, but still yielded no results.[103] The differences between Imagen and Stable Diffusion are informative. Imagen is a more powerful model than Stable Diffusion and it has a lower leverage ratio—i.e., a lower ratio between the size of the training data and the model itself.[104] The relative success of focusing on unique image tags in the Imagen model suggests that increasingly large LLMs will be more prone to memorization.[105]

Carlini’s group explicitly suggest that memorization is more likely for images that appear multiple times in the training data and for images that are associated with unique text descriptions. However, the paper also implicitly suggests an additional consideration when assessing the risk of memorization. The Carlini extraction attack only seems to work when the image in question was simple and was closely associated with a specific text description.[106] The group found that “[t]he majority of the images that we extract (58%) are photographs with a recognizable person as the primary subject; the remainder are mostly either products for sale (17%), logos/posters (14%), or other art or graphics.”[107] In other words, memorization was more likely when relatively simple images were associated with specific text descriptions. Although the paper did not address it specifically, its findings are consistent with what I will call the “Snoopy problem.”

B. The Snoopy Problem
The Snoopy problem is that the more abstractly a copyrighted work is protected, the more likely it is that a generative AI model will “copy” it. This explains why—although it is generally quite difficult to prompt Midjourney to create pseudo-expression that infringes on copyright in a pictorial work—it is quite easy to cause it to infringe on copyrightable characters with a strong visual component. The Snoopy problem appears to have eluded computer scientists focusing more specifically on the potential for memorization of specific images, but it should be the key area of concern from a copyright perspective. In the Section that follows, this Article offers a series of examples using Midjourney and Stable Diffusion to demonstrate that it is difficult to infringe a copyright on pictorial works generally, but easy to infringe a copyright on copyrightable characters.

1. Failed Infringement Provocations.
First, I offer two unsuccessful attempts to provoke generative AI into copyright infringement. Figure 11 compares an image from the Stable Diffusion training data with six equivalent images rendered in Stable Diffusion using the same description: “Orange macarons or macaroons cakes with cup of coffee on a white concrete background and linen textile.”[108]

Figure 11
Figure 11:Failed attempt to recreate “orange macarons or macaroons cakes with cup of coffee on a white concrete background and linen textile”
The Stable Diffusion images on the right are no match for the image from the training data on the left. Moreover, a review of other images in the training data tagged for orange macaroons did not suggest any other specific image that might have been infringed upon.[109] There is no mathematical guarantee that if I generated a thousand additional images, one of them would not be a close match to the original copyrighted image. But there is no reason to think that it would be, either. One might object that if I had instructed Stable Diffusion or Midjourney with greater precision, I would have had more success in emulating the original copyrighted image. Perhaps that’s true, but in that case the infringement would stem from the detailed instructions I gave the AI, not from any inherent feature of the AI itself. After all, a typewriter with the right instructions can infringe on any literary work, but we do not think of the makers of typewriters as participating in copyright infringement.

Figure 12 compares a classic Salvador Dalí painting (left) with four recreation attempts in Stable Diffusion (middle) and another four using Midjourney (right). The original picture in question is Three Young Surrealist Women Holding in Their Arms the Skins of an Orchestra, painted by Dali in 1936.

Figure 12
Figure 12:Failed attempt to infringe on a Salvador Dalí painting
Each of the pseudo-expression images in the Figure above can be readily identified as some kind of Salvador Dali knockoff, but none of them look much like the original painting. Again, this failure suggests that the work in question has not been memorized.

2. Successful Infringement Provocations
However, when it comes to copyrightable characters, provoking copyright infringement is easy. Figure 13 compares several images of Snoopy on his red doghouse surrounded by Christmas lights taken from a Google Image search (top) with equivalent pictures generated with the prompt “Snoopy laying on red doghouse with Christmas lights on it comic,” using Midjourney (lower left) and Stable Diffusion (lower right).

Figure 13
Figure 13:Successful attempt to infringe on Snoopy using Midjourney, and Stable Diffusion
Although none of the generated images is an exact copy of the copyrighted images shown above, or any others I could find, the strength of Snoopy as a copyrightable character is probably enough to make the generated images infringing.

Figure 14 is the same, except that it depicts four vintage Mickey Mouse images obtained from a Google image search (top), images created in Midjourney (bottom left), and Stable Diffusion (bottom right), with the prompt “classic style mickey mouse winking.”

Figure 14
Figure 14:Successful attempt to infringe on classic style Mickey Mouse
Once again, the generated images are far from an exact match to any specific original Mickey Mouse image, but the strength of the Mickey Mouse copyright is such that they would probably all infringe without some fact-specific argument about transformative use.[110]

3. Copyrightable Characters
Why is it so difficult to re-create a Salvador Dali painting using Midjourney, but so easy to generate prima facie infringing images of Snoopy, Mickey Mouse, and other copyrightable characters? The answer has its roots in the mechanics of training image generation models, but it also has a lot to do with the extremely broad protection that copyright offers to visual characters.

The copyrightability of individual characters that emerge from books, comics, movies, etc., is one of those features of copyright law that makes more sense in practice than in theory. Unlike literary works, pictorial, graphic and sculptural works, or audiovisual works, “characters” as such are not enumerated in the Copyright Act’s list of copyrightable subject matter in § 102(a).[111] For this reason, the U.S. Copyright Office does not permit the registration of characters separate from some underlying work of visual art, motion picture, or literary work.[112] And yet, for decades, courts have consistently referred to copyrightable characters as though they were a distinct property interest protected by copyright law.[113]

To qualify as copyrightable, a character must be reasonably detailed and distinct,[114] and, according to some cases dealing with literary works, it must be central to the underlying work such that it “constitutes the story being told.”[115] The “story being told” test is regarded as unduly restrictive by many courts, particularly in the context of characters emerging from comics, film, and television.[116] In a recent case involving the Batmobile, DC Comics v. Towle, the Ninth Circuit held that a character is entitled to copyright protection if (1) the character has “physical as well as conceptual qualities”; (2) the character is “‘sufficiently delineated’ to be recognizable as the same character whenever it appears” and “display[s] consistent, identifiable character traits and attributes”; and, (3) the character is “‘especially distinctive’ and ‘contain[s] some unique elements of expression.’”[117] This test focuses on consistency and distinctiveness and recognizes copyrightable characters need not be central to the story being told in the original work. Applying this test, the court found that the car from the Batman comics, television, and film franchise was a copyrightable character, infringed upon by the sale of replica kits intended to modify an existing car to look like the famous crime-fighting vehicle.[118]

The test in DC Comics v. Towle explicitly recognizes the emergence of a discrete intellectual property entitlement based on emergent properties—the identification of features and characteristics across a series of copyrightable works. This is puzzling for those who regard individual copyrighted works as the fundamental unit of analysis for copyright law, which is what the text of the Copyright Act suggests.[119] However, despite the tendency of federal judges to refer to copyrightable characters as distinct entitlements, the practice can be reconciled with ordinary principles of copyright law by acknowledging that copyrightable characters are a heuristic—not so much a legal fiction as a legal shortcut. In other words, although “characters are not . . . copyrightable works as such, . . . in the context of an infringement action it is a reasonable time-saving heuristic to talk about them as though they were.”[120] The practice is reasonable because there are many instances when closely copying a character will be enough to establish infringement of the underlying work. The conceit of copyrightable characters is advantageous for plaintiffs in two ways. First, it allows the copyright owner to establish substantial similarity by showing that a significant and identifiable character has been closely copied. Focusing the court’s attention on copyrightable characters ensures that other differences between the plaintiff’s and defendant’s works can safely be ignored.[121] Second, presenting a case in terms of the infringement of copyrightable characters frees the copyright owner from the burden of pointing to which specific work the defendant’s product is infringingly similar.

The most important implication of copyrightable characters in the context of generative AI is that, practically speaking, the level of similarity required to establish infringement is reduced in that context. This problem is compounded because the way LLMs learn to associate visual elements with text descriptions effectively primes them to memorize the very relationships that constitute a copyrightable character. When presented with a thousand different images associated with the word “Snoopy,” a model like Stable Diffusion learns which characteristics are consistently repeated across the entire set. In the words of the Ninth Circuit, the model focuses on the “consistent, identifiable character traits and attributes,” and gives more weight to those that are “especially distinctive.”[122]

As noted above, memorization is more likely if a text description is closely associated with a particular image over and over again; it is also more likely if the image is relatively simple or relates to a single subject.[123] Because the threshold of substantial similarity required to infringe on a copyrightable character is comparatively low, multiple variations of the same character in the training data will result in a latent concept for the character that is readily identifiable and easily extracted by invoking the name of that character. This explains why it is easy to provoke Midjourney to recreate copyrightable characters such as Snoopy and Mickey Mouse but difficult to come close to infringing a Salvador Dali painting with a simple text description of the scene.

4. The Snoopy Problem Is Not Limited to Copyrightable Characters
The Snoopy problem is not strictly limited to copyrightable characters. It is also evident in other images that are repeated with minor variations and consistently tagged with the same keywords. For example, it is easy to generate images that would infringe the copyright in one of Banksy’s famous street art pieces featuring a black stencil of a young girl holding a red balloon.[124] Just as in the Snoopy and Mickey Mouse examples above, the girl + balloon image is simple, it is repeated in the training data with only minor permutations, and it is associated with a simple specific text description.

Figure 15 begins with one version of the original Banksy image on the left; it shows four images rendered in Midjourney using the prompt: “Banksy style mural black and white stencil little girl reaching for heart-shaped red balloon” in the middle, and another four Midjourney images without the express reference to Banksy, i.e., “black and white stencil little girl reaching for heart-shaped red balloon” on the right.

Figure 15
Figure 15:Successful attempt to infringe on Banksy using Midjourney, with and without references to Banksy
The images Midjourney created are not identical to the Banksy original, but each one is strikingly similar to that original image. The silhouette of the girl is remarkably consistent, as is its relationship to the balloon. The size and details of the balloon vary slightly, but it is largely the same heart-shaped balloon as in the original image. This example is particularly informative because it illustrates that the Snoopy problem is not strictly limited to copyrightable characters. LLMs will face this problem whenever the training data includes multiple versions of simple copyrightable images tightly associated with labels, regardless of whether those images are copyrightable characters or not.

5. How Common Is Infringing Output?
Experiments in different areas of generative AI may turn up additional issues of concern, but it seems likely that the core concerns of duplication and leverage are issues for all LLMs. Research on text-generating LLMs seems consistent with the observations made in this Article with respect to text-to-image models. For example, Henderson et al. queried a range of LLMs with texts selected from a random selection of books presumed to be in the training corpus and found very little evidence of memorization.[125] However, they did find significant evidence of memorization for popular books, and extreme results for works in the Harry Potter series and the Dr. Suess book, Oh The Places You’ll Go! Given the ubiquity of these texts on the Internet, this is unsurprising.[126]

It is difficult to estimate how often generative AI is used to create pseudo-expression in violation of copyright law because the relevant data is not public. Successful extraction attacks, in various contexts, are evidence that LLMs are capable of memorizing aspects of their training data, but many of these attacks are premised on somewhat contrived situations or targeted at works especially likely to be duplicated, and as such, they do not give us much insight into how often generative AI may lead to copyright infringement out in the wild.[127]

Even if the relevant information were public, outputs would need to be analyzed to determine whether they were too similar to something in the training data, and if so, whether it might nonetheless be permissible as fair use. Substantial similarity is difficult to objectively assess at scale because small amounts of duplication may be de minimis, or irrelevant because they relate to uncopyrightable elements or pre-existing quotations from the public domain. But in other contexts, they may relate to the “heart of [the] work” and be deemed sufficient for infringement.[128] By the same token, the absence of exact duplication does not guarantee noninfringement: a large constellation of more abstract points of similarity may be enough to establish nonliteral infringement.[129]

V. A Preliminary Proposal for Copyright Safety for LLMs
The interdisciplinary field of AI safety is concerned with preventing unintended misfortune and deliberate misuse of AI.[130] Although copyright infringement does not pose the same existential risk as Skynet or Nick Bostrom’s out-of-control paperclip factory,[131] copyright infringement by LLMs is a foreseeable risk. Like other issues in AI safety, addressing the potential for copyright infringement will require technical solutions informed by legal, ethical, and policy frameworks. Of course, recognizing risks is much easier than devising a coherent regulatory framework in response. Rather than attempting to design the optimal regulatory regime for generative AI, this Article simply proposes a framework for a set of Best Practices for Copyright Safety in Generative AI and defers questions of implementation for the future.[132] These best practices could be promulgated by the U.S. Copyright Office, folded into a broader set of best practices by some other government agency, incorporated into legislation, or they may simply become a reference in future litigation. Indeed, just as the Second Circuit indicated that taking reasonable security measures was a consideration in the fair use defenses raised by HathiTrust and Google,[133] a future court may well determine that complying with Best Practices for Copyright Safety in Generative AI should be part of the fair use calculus when the makers of LLMs are accused of infringement for using copyrighted material as training data.

Before beginning with my proposed Best Practices for Copyright Safety in Generative AI, I should note that excluding copyrighted materials from training unless there is affirmative consent for that use would be overly restrictive. Self-evidently, the copyright risks of generative AI could be minimized by training LLMs only on works in the public domain and works that had been expressly authorized for training.[134] Currently, the training data for many such models excludes toxic and antisocial material, so filtering out copyrighted works is technically plausible.[135] However, restricting language models to works in the public domain or works that are made available on open licenses is not an appealing solution, except in some specialized domains. Such models would be highly distorted because very little of the world’s knowledge and culture created since the Great Depression is in the public domain.[136] Public domain materials could be supplemented with works released under open source and Creative Commons licenses, though these often require attribution in a manner that would be impossible for LLMs to provide.[137] Restricting the training data for LLMs to public domain and open license material would tend to encode the perspectives, interests, and biases of a distinctly unrepresentative set of authors.[138] A realistic proposal for copyright safety for LLMs should focus on the safe handling of copyrighted works, not simply avoiding the issue by insisting that every work in the training data is in the public domain or affirmatively authorized for training.

A. Proposals
1. LLMs Should Not Be Trained on Duplicates of the Same Copyrighted Work
The most obvious recommendation for improving copyright safety for LLMs is to purge duplicates from the training data. Deduplication will not only reduce the likelihood of downstream copyright infringement, it will also mitigate privacy and security risks and reduce the cost of training.[139] Deduplication sounds simple, but addressing quotations within works (whether textual or visual) and dealing with different versions of the same work may be challenging.

2. Researchers Should Carefully Consider the Size of LLMs in Proportion to the Training Data
Deduplication will substantially reduce the likelihood of infringing outputs generative AI produces.[140] The risk can be further reduced by forcing the model to learn abstractions rather than memorize specific detail.[141] As the size of LLMs continue to increase, so too does the likelihood of specific memorization.[142] Entities that create extra-large LLMs may need to undertake additional precautions in relation to copyright safety and analogous concerns.

3. Reinforcement Learning Through Human Feedback Targeted at Copyright, Trademark, Right of Publicity, and Privacy Sensitivity Should Be Part of Training LLMs, Where Feasible
Just as OpenAI used reinforcement learning through human feedback to make ChatGPT provide subjectively better answers than the base model GPT 3.5,[143] a similar approach to interactive reinforcement learning could help reduce the probability of copyright infringement.[144] Moreover, this strategy should also extend to closely related concerns raised in relation to trademark, right of publicity, and privacy.[145] Using reinforcement learning to address copyright concerns as the model is being trained would be more robust than simply filtering the output of the model ex post because output filtering requires continued oversight. The recent leak of Meta’s LLM, LLaMA, suggests that such oversight cannot be reasonably guaranteed.[146]

4. Operators of LLMs Should Consider Strategies to Limit Copyright Infringement, Including Filtering or Restricting Model Output
Today’s popular generative AI tools already incorporate filters designed to prevent antisocial and infringing uses.[147] It is unclear whether a universal filter that compared model output to the training data is feasible. If it were, or if generative AI platforms deployed more targeted filters, there would also be calls for those filters to be calibrated to consider fair use. In Lenz v. Universal, the Ninth Circuit held that before issuing a takedown notice under § 512 of the Copyright Act, copyright holders have a “duty to consider—in good faith and prior to sending a takedown notification—whether allegedly infringing material constitutes fair use.”[148] Lenz suggests that this consideration of fair use must be made individually, and the dominant view among copyright academics is that automating fair use analysis is somewhere between difficult and impossible[149]—but perhaps an imperfect fair use screening tool would be better than none?[150]

Additional research is required to determine which issues can be more effectively dealt with by reinforcement learning ex ante, rather than filtering ex post. Given that the developers of many LLMs have been slow to address potential copyright issues, it seems likely that some ex post filtering will be necessary as a second-best solution.

5. LLMs That Pose a Significant Risk of Copyright Infringement Should Not Be Open-Sourced
If an LLM is likely to be used to generate pseudo-expression that infringes on copyrights (or other analogous rights) in a material fashion, that model should not be left unsupervised.

6. Those Who Use Copyrighted Works as Training Data for LLMs Should Keep Detailed Records of the Works and from Where They Were Obtained
Using copyrighted works as training data for generative AI is likely to be fair use if appropriate precautions are taken. However, copyright owners cannot know whether an AI developer is acting responsibly without some transparency into the developer’s process. At a minimum, developers should keep logs and give copyright owners practical tools to determine whether their works are part of the training data.[151]

The remaining best practices relate specifically to text-to-image models.

7. Text Descriptions Associated with Images in the Training Data Should Be Modified to Avoid Unique Descriptions
It should be straightforward to convert unique descriptions to more general ones by removing specific dates, exact locations, names of individuals, etc., and replacing them with slightly more generic versions.

8. The Names of Individual Artists, Individual Trademarks, and Specific Copyrightable Characters Paired with Images in the Training Data Should Be Replaced with More General Descriptions
Much of the anxiety about predatory style transfer would be alleviated if the names of individual living artists were replaced with stylistic markers. For example, one of the most commonly invoked style prompts in early 2023 was Greg Rutkowski,[152] an artist who is well known for his richly detailed depictions of Dungeons & Dragons and similar worlds in a style comparable to the romantic English painter, William Turner.[153] The notion that Rutkowski has a copyright interest in this style, in the sense of some signature constellation of attributes that can be identified only be comparing a series of works, is hard to reconcile with basic copyright law doctrines,[154] but the harm that Rutkowski suffers by having his genuine works crowded out in internet searches by tens of thousands of images produced “in the style of Rutkowski” is very real. That harm could easily be avoided with almost no loss of functionality because Rutkowski’s name is primarily used as a shortcut to invoke high-quality digital art generally, or in relation to fantasy motifs.[155]

Replacing the names of potentially copyrightable characters with more generic descriptions would not stop text to image models learning from the associated images, but it would change what they learned. Instead of constructing a latent model of Snoopy, pictures of Snoopy would contribute towards a more general latent model of cartoon dogs, black and white cartoon dogs, etc.

The Copyright Office could play a useful role by maintaining a registry of artists and copyright owners who do not want their names, or the names of their characters, used as style prompts.

9. As an Alternative to the Above Recommendation, the Operators of Text-to-Image Models Should Not Allow Unmixed Prompts Containing the Names of Individual Artists, Individual Trademarks, and Specific Copyrightable Characters
This proposal would allow users to combine the styles of specific artists while avoiding the prospect of predatory style transfer. In a similar fashion, it would enable users to combine trademarks or copyrightable characters in transformative and parodic ways that would generally not give rise to copyright and trademark liability.

Another slight variation on this recommendation would be to automatically generalize prompts that invoke the names of individual artists, individual trademarks, or specific copyrightable characters. Taking this course, “in the style of Greg Rutkowski” would become something like “in the style of high-quality fantasy with romantic fine-art influences.”[156]

10. Text-to-Image Models Should Exclude Watermarked Works from the Training Data, Use Reinforcement Learning from Human Feedback to Discourage the Production of Works Featuring Watermarks, and Apply Output Filters to Prevent the Appearance of Watermarks
The primary reason to treat watermarked images with more care is to avoid trademark liability.[157] Although excluding watermarked images from the training data is arguably unnecessary if the requirements of nonexpressive use are satisfied, very little would be lost by respecting the obvious commercial sensitivity of such images.

VI. Conclusion
While generative AI is trained on millions and sometimes billions of copyrighted works, it is not inherently predicated on massive copyright infringement. Like all machine learning, LLMs are data dependent, but the relationship between the training data and the model outputs is substantially attenuated by the abstraction inherent in deriving a model from the training data, blending latent concepts, and injecting noise, before unpacking them into new creations. With appropriate safeguards in place, generative AI tools can be trained and deployed in a manner that respects the rights of original authors and artists, but still enables new creation. The legal and ethical imperative is to train models that learn abstract and uncopyrightable latent features of the training data and that do not simply memorize a compressed version of the training data.

Computer scientists have identified ways in which LLMs may be vulnerable to extraction attacks. This literature is helpful but incomplete. The real question for generative AI is not whether it is ever vulnerable to extraction attacks, but whether foreseeable mundane uses of the technology will produce outputs that infringe on specific copyright interests. This Article has shown when infringement is likely and when it is not, based on the probability of memorization, the number of duplicates of a work, and the ratio of model size to training data. This Article proposes a set of Best Practices for Copyright Safety for Generative AI, which acts as a guide for how AI can avoid infringing on copyrighted works without sacrificing the generative capacity that makes it extraordinarily valuable.

This Article has focused on text-to-image generative AI, but many of its recommendations are applicable to other forms of generative AI. No doubt, as the technology continues to evolve and other researchers focus on issues relating to chatbots, multi-modal systems, and domain specific applications, new issues will emerge. This Article has laid the foundation for what will hopefully be an ongoing conversation to develop and refine Best Practices for Copyright Safety for Generative AI for the benefit of society at large.

VII. Appendix
Figure A-1
Figure A-1:ChatGPT on Marbury v. Madison
Figure A-2
Figure A-2:ChatGPT on Marbury v. Madison in Hip-Hop
Figure A-3
Figure A-3:ChatGPT on Marbury v. Madison at a Fifth Grade Reading Level
Figure A-4
Figure A-4:Comparison of Greg Rutkowski to William Turner
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