Artist takes legal action alleging AI copies their creative style

Written by Amy Ta, produced by Marcelle Hutchins

“Liminal” by Kelly McKernan. The artist says their style is electric art nouveau that includes vibrant colors. Courtesy of Kelly McKernan.

Imagine you’re an unknown artist, hoping to earn a modest living by uploading your pieces to online galleries like DeviantArt to sell them. Artificial intelligence now combs through those websites to learn — and can make a painting or sculpture that looks exactly like something by a human who won’t earn a cent from it. 

Nashville artist and illustrator Kelly McKernan alleges this is exactly what happened to her. They’re now part of a class-action lawsuit against two AI companies (Midjourney and Stability) and the DeviantArt platform.

McKernan works mainly in watercolor and acrylics, describing their style as electric art nouveau with vibrant colors. They joined DeviantArt in 2002 as a high school student to make friends with other artists. 

About a year ago, McKernan noticed they were tagged in strange images, “not necessarily giving me credit, but people using my name as a prompt.” 

“[AI] would access data that they had scraped off of the internet, so over 50 artworks of mine. … And then create images in the style of my work. … [People] were uploading these AI-generated images with my name and the metadata data on to sites like Redbubble, other print-on-demand websites, and they're making a steady living off of that.”

In terms of the lawsuit, McKernan says, “I really like this terminology ‘vicarious infringement’ because the input is stolen data. … The output is infringing on my inherent copyright by using that data and using my name. And also my name comes with the right to publicity. … There are people making a lot of money off of my name and 15 years of my art, and yet I'm struggling to pay rent. So I wanted to do something about that.”

Shanti Escalante-De Mattei, a staff writer at ARTnews, says this is a common story. 

She explains that copyright law protects a particular image, but not style. “You have these companies who are benefiting off of the particular way that these artists draw and interpret their visual language. And yet, it's something that they themselves can't claim or protect.”

If these images are taken for training purposes, however, then it’s murky territory. “Copyright protects you from having your work copied or distributed or performed without your consent, right? But does copyright protect you from your work being used to train something? It's a kind of novel idea, and it's something that copyright isn't quite able to encompass at this moment.”

Meanwhile, McKernan says when they see work created in their style, “it often feels like it's pulling from unfinished sketches in my head.”

They continue, “It feels invasive and violating, so I'm worried about putting future work online that will be essentially used to replace me. I'm a single mom, and every job that I pick up goes directly to helping them make it through. So I'm not like rolling in riches or anything. … So I'm fighting back.”