In Andersen v. Stability AI, three named visual artists filed a proposed class action suit against Midjourney, Stability AI and DeviantArt, whose generative AI models were allegedly trained on billions of images scraped from the Internet without the permission of the copyright holder. The complaint alleged that there was direct and vicarious copyright infringement through non-consensual use of their works through works generated “in the style” of the artists. The complaint further claimed violations of the DMCA, violations of the right of publicity law, Cal. Civ. Code § 3344, violations of the common law right of publicity, unfair competition, and breach of contract of DeviantArt’s privacy policies.

In an order issued in October 2023, U.S. District Judge William Orrick of Northern District of California largely granted Stability AI’s motion to dismiss and gave Andersen a leave to amend to clarify their theories of each defendant’s differentiated roles in copyright infringement, DMCA violations, and violations of rights of publicity. The plaintiffs will be required to state and provide plausible facts on how compressed copies of training images contained in Stable Diffusion constituted direct copyright infringement. Another direct infringement claim is the allegation that output images from DreamUp are infringing derivative works, a claim that Judge Orrick required a showing of substantial similarity in order to survive. Additionally, the plaintiffs will have to provide facts that support Midjourney’s liability in direct infringement through the training process as well as facts that clarify DeviantArt’s liability.