Last week saw another shot across the bow in the fight over the future of digital creativity. First came the announcement that Disney had come to an agreement with OpenAI, then the leaked cease-and-desist letter from Disney’s lawyers to Google. The deal with OpenAI purports to be a license for the use of Disney characters in media that OpenAI users create with its tools, while the threat to Google is that unless it blocks user activity based on the potential inclusion of Disney characters, a lawsuit would be in the offing. Both moves reflect Disney’s apparent belief that it has the right to control any and all creations that incorporate characters from their IP trove, regardless of purpose, audience, or market effect.
The threat to fair use is hard to overstate. Countless fair uses involve protected characters, including core expressive activities like critique, parody, education, and fan fiction. The idea of stopping these uses before they start, before a work even leaves the privacy of a creator’s bedroom, is anathema to any balanced view of copyright. Every guitar owner is free to play “Smoke on the Water” or “Smells Like Teen Spirit” in the privacy of their bedroom, and every middle school kid is free to draw their own Wolverines and Snoopys on the covers of their spiral notebooks. Corporate copyright holders have never been able to reach into private spaces and change what and how we create. The moral panic of AI shouldn’t be cover for this audacious rights grab.