When Adam Basanta created his art installation “All We’d Ever Need is One Another”, he wanted to explore technological automatization and the commercialization of art. But as he told the Globe and Mail, he never expected to explore these topics in a courtroom. Nor was he ecstatic to be served with a Statement of Claim.
The Plaintiffs are the artist Amel Chamndy and Galerie NuEdge Fine Arts, which showcases her works. They are claiming $40,000 in damages for copyright and trademark infringement arising from Basanta’s project.
The project, which Basanta describes as an “art factory”, generates images randomly, without human input. Two computer scanners lay on their sides, endlessly scanning each other, and the images are influenced by the lighting conditions in the room as well as a computer mouse that is programmed to randomly change the scanners’ settings. Each image is analyzed using a deep-learning algorithm that was trained on a database of contemporary artworks. When the algorithm identifies a match of 83% or higher, the scanned image is automatically uploaded to Basanta’s website and Twitter page and named after the lookalike artwork, the percent similarity, and the artist’s name.
Chamandy’s claims that Basanta’s image “85.81%_match: Amel Chamandy ‘Your World Without Paper’, 2009” violates her copyrights in a photographic work as well as the trademark on her name, AMEL CHAMANDY.
Chamandy claims that although her photograph was not republished by Basanta, an unauthorized copy of her work was necessarily made in the process of selecting scanned images for publication on Basanta’s website.
It’s hard to predict whether the “art factory” will be exempt from copyright infringement under the fair dealing provision because the analysis is highly contextual. CCH v LSUC provides a closed list of purposes and a non-exhaustive list of six fairness factors. Basanta’s use may qualify as research because the computer-generated works are not sold, and Chamandy’s photograph was used temporarily by a computer but never published. Chamandy may argue that Basanta has a commercial purpose or that his website has lessened demand for her photograph.
Teresa Scassa, a professor of law at the University of Ottawa, points out in her blog that the outcome of a fair dealing argument is all the more uncertain because the courts have not taken a clear position on data mining.
In data mining, deep-leaning algorithms are trained to recognize patterns in large datasets, and since the tool is becoming prevalent in nearly every industry, it raises questions about the copyright attached to the training data. Chamandy’s photograph may not have been part of Basanta’s training data, but the issues are similar. Does each of the thousands of artists whose art was used by the computer have a claim against Basanta? At the moment, Canada is trying to decide how data-mining will fit into our current regulatory scheme and whether any exemption is required to accommodate it. On one hand, we should protect the interest of rightsholders, but on the other, we cannot discourage the development of artificial intelligence in Canada. A machine-learning algorithm is only as good as the data that it was trained on, so the industry cannot flourish without clear guidelines and reasonable access to data.
Whatever the outcome of Chamandy’s copyright case, she is not likely to succeed in establishing trademark infringement.
Because Basanta’s use of Chamandy’s name is neither as a trademark, nor is it confusing to the consumer, the case hinges on section 22 infringement: depreciation of goodwill. Following the Clairol precedent, a plaintiff seeking to claim section 22 damages does not need to prove the defendant used the mark as a trademark for the purpose of distinguishing wares or services, merely that wares or services were distributed in association with a registered trademark.
Although the title of work could associate goods or services with Chamandy’s trademark, there are no goods or services in this case. In Michelin, striking union workers were permitted to use the “Michelin man” logo in promotional materials because, although they were recruiting members and collecting membership fees, the workers were not distributing wares or services for sale. Similarly, Basanta does not offer any of his computer-generated images for sale, nor does it appear that he is receiving any advertising revenue from his website. Chamandy will have the impossible task of proving that Basanta’s use of her trademarked name to bolster his own reputation constitutes advertisement in association with a service.
Written by Gillian Burrell. Gillian is a JD Candidate at Osgoode Hall Law School and was enrolled in Osgoode’s Intellectual Property Law Intensive Program. As part of the program requirements, students were asked to write a blog on a topic of their choice.
 Clairol International Corp. v. Thomas Supply & Equipment Co.,  2 Ex.C.R. 552