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81 Wash. & Lee L. Rev. Online 1 (2023-2024)

handle is hein.journals/waleelro81 and id is 1 raw text is: Artificial Intelligence and Transformative Use After Warhol Gary Myers* Abstract The Supreme Court's recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith clarifies the scope of transformative use and the role of these uses in the fair use analysis. This important case has implications for a fair use analysis of artificial intelligence. This article evaluates the interaction between copyright law's fair use doctrine and typical sources and uses for artificial intelligence. In other words, the article will assess whether or not the use of copyrighted material to train Al programs-Al inputs-and the products of Al programs-Al outputs-are likely to found to be transformative in light of the Warhol framework. This article assesses the potential fair use analysis for generative Al applications in light of Warhol's analytical framework. The central question in Warhol is the scope of transformative use versus a use that is derivative and which supplants a market for the original copyrighted work. Whether the use of copyrighted material to train Al programs and the products of Al programs are likely to found to be transformative in light of the Warhol framework is an intensely factual inquiry. This article concludes that the use of copyrighted material as inputs for training Al programs is-by itself-likely to be found to be a transformative fair use in most circumstances. The more difficult question is how Al outputs are analyzed. Fair use is necessarily a case-by-case inquiry. In light of cases like Warhol and Google v. Oracle, the * Earl F. Nelson Professor of Law, University of Missouri School of Law. I wish to thank Meghan McAuliff for her helpful research assistance. 1