Earlier this month, Royal College of Art student Sures Kumar launched a school project called Pro-Folio. It used a clever algorithm to scrape photos from Behance member portfolios, then feature that media on uniquely curated, fictional artists' pages without attribution. His point was to tease (and warn) the public about a future in which artificial intelligence runs amok, creating an environment where we can't tell real people from digital fakes. Now, under pressure from Behance, followed up with a cease and desist order from an independent artist, he has removed the project.
While at first glance, it might appear that Behance and its community attempted to suppress an artist protected under fair use, what occurred is actually a relatively open and shut copyright case that serves as an important cautionary tale for artists.
Pro-Folio was always meant to strike a nerve. For the end user, it took merely a few seconds to type in a name (it could even be their own!) to generate a new portfolio full of other people’s work. 690,903,803 trillion combinations of fictional identities were possible using this technique. Kumar had told us that fooling his audience was "the entire point of the project," because his thieving software was intended to portend a future in which we’d become unable to distinguish humans from robots.
As one might expect, at least a handful of artists who caught wind of the project complained—many citing violation of copyright—and Behance reached out to Kumar and asked him to stop scraping work without attribution. Fearing litigation on a student’s budget, Kumar agreed, and he’s now in the throes of revamping Pro-Folio somehow to appease Behance and its community. But the question remains: was Kumar—an artist rather than an entrepreneur—really in violation of copyright? Or should he have stuck to his guns in the name of fair use?
The fact that Pro-Folio upset artists who felt helpless to its whims was actually proof that his work was relevant, which he stated with incredible clarity when defending his work in the comments of our original article:
...Imagine tomorrow if there are 300 online portfolios on your name created by various such bots, how do you think your audience can differentiate the machine generated ones from your original one in search results. I want my audience to think about this. In short, I would like the audience to think about machine-generated identities and their influence in our society.
If this project disturbs you, its [SIC] the right time to think "what sort of systems do we have in place online to differentiate a real human identity from a machine generated one". Can we stop large scale organizations from doing this? Theoretically anyone with the right infrastructure can scrap the entire internet for intelligence to come up with extremely believable identities. My intention is to raise such questions among the audiences and possibly encourage discussion.
In this regard, it’s unequivocal that Pro-Folio is a piece of art rather than a straightforward plagiarizing tool. And if Pro-Folio is art, wouldn’t it be protected under the umbrella of fair use?
Fair use is a beloved defense for any artist using someone else's copyrighted work without permission, and it's an important part of our freedom of speech. Fair use allows critics to cite and critically discuss lines from a book or film, for instance, or for SNL to use the presidential seal with parodying Barack Obama's telecasts. Fair use, in essence, allows us to have a meaningful dialogue with all the copyrighted stuff around us.
But it's vital to note that fair use is actually a defense rather than an immunity card. Technically, an artist who has used copyrighted work in their art can still be prosecuted for copyright infringement. Fair use would be the defense plead in court—and a costly one.
To decipher whether Pro-Folio was a case of fair use, I consulted intellectual property attorney and AIPLA board member Kevin Tottis. He prefaced the conversation like any good attorney would—pointing out that fair use is a far from cut-and-dry defense, with several landmark cases bouncing around courts for years, being passed from district courts to the Supreme Court and back, often with some pieces of a project deemed fair use and others not, racking up countless dollars in legal fees while judges failed to rule reliable, blanket precedents. And to make matters even more complicated, a fair-use precedent decided in New York wouldn't necessarily apply to the courts of California.
But then, along with AIPLA Legal Director Jim Crowne, Tottis simply decimated the suggestion that Pro-Folio would be seen as a case of fair use within the legal system just because it was itself a piece of art.
"[Pro-folio] is like a DJ taking an iPod shuffle and, then publicly performing copyrighted songs off it," Tottis says. "And he says, ‘Yeah, but I used an iPod shuffle, and I used a shuffle algorithm! And I’ve named this particular set Bruce. These are Bruce’s songs, it’s a separate identity, so that gives me carte blanche to perform 100 copyrighted songs without a license to play them!’ That’s sort of what’s going on here."
Did it matter that Kumar is a student? Not at all, I was assured, and this is a common mistake that students and educators alike make when considering fair use. What about the fact that Kumar wasn’t making money off of Pro-Folio? This could help Kumar’s case a bit, Tottis admitted, "but it’s not nearly as big a factor as a lot of lay people like to think it is."
So what did matter here? One of the core questions of fair use is always, does the new work replace the market for the old work? Given that Pro-Folio was lifting full images without attribution—even though it was through profitless false identities—Pro-Folio’s artist pages could be seen as invading the market of the original artist portfolio (or even their work). In this sense, it didn’t matter if Pro-Folio was social commentary because that social commentary was harming the artists it was lifting from without permission.
To get a second opinion, I discussed Kumar's situation with Volunteer Lawyers for the Arts (VLA), a nonprofit that offers pro bono legal representation to low-income artists. While they were a bit less positive than AIPLA that Kumar would lose a copyright infringement suit in court—citing the recent Cariou v. Prince of a example of the somewhat unpredictable course a fair use case can take—their advice would be that Kumar shut the site down because a defense would be costly, and even if the copyright infringement claims didn't stick to him personally, Pro-Folio could be seen as a platform to enable copyright infringement (somewhat like Megaupload), which is illegal to operate under the Digital Millennium Copyright Act (DMCA).
That said, it seems plausible that Pro-Folio didn't need to completely shut down in response to Behance and the artist's cease and desist, but rather, it could be revamped to operate, not with total copyright impunity, but at least a stronger fair use defense.
"When you look at appropriation of images on the web, typically, if you were appropriating thumbnails or links, that’s considered fair use and you’re going to be safe," Tottis says. "Arguably, if Pro-Folio put together a portfolio that had thumbnails and links, I think they’d have a much stronger argument about copyright infringement."
This is a safer approach because thumbnails generally don't replace an original piece of art, and when linked, it offers a viewer a way to discover the original. But even still, while Pro-Folio would be more likely to win with a fair use defense having instituted these modifications, it's still not certain. Not to mention, a thumbnail and attribution revamped Pro-Folio wouldn’t harken a dystopian future in which bots have run amok with our intellectual property in quite the same way, but it might be able to weather a copyright infringement claim of today.
Even if Pro-Folio is most likely an illegal piece of art, it still provides an easily learned lesson for all of us. Kumar and Behance reached a relatively painless cease fire only because he meant no harm, and he was publicly affiliated with his project. But what if Kumar weren’t a student artist with small coffers? What if he were a mega corporation, flush with cash from, say, an army of autonomous bots creating an endless stream of false identities? Or what if, like the lucrative spyware factories out of China and Russia, Kumar operated with relative anonymity and political immunity?
"I am sure Pro-Folio has made its point loud and clear," Kumar writes. And I sure hope the he’s right.