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11.06.20

Artificial intelligence admitted in copyright dispute

BY Tracy Ickes

A federal district court recently allowed an expert to testify on the similarity of copyrighted and purportedly infringing images using facial recognition technology. This appears to be the first decision regarding admissibility of such evidence in a copyright dispute.

The plaintiffs created “King Cake Baby,” used as a mascot for the New Orleans Pelicans. Reviews of the mascot are mixed, with one website describing it as “a grotesque creature that looks like it survives off some wicked concoction of stolen baby candy and tears.” New Orleans Pelicans Reveal Stunning “King Cake Baby” Mascot. King Cake Baby’s creators allege that a cartoonish baby face in the feature films Happy Death Day and Happy Death Day 2U infringe their copyright.

In support of their claims, plaintiffs offered expert testimony that most people would view King Cake Baby and the Happy Death Day mask as substantially similar. One of the experts “conducted an artificial intelligence assisted facial recognition analysis” to reach his conclusion. Defendants challenged the admission of this testimony under Daubert. With little discussion, the court concluded the expert was qualified and denied the motion.

Tests for substantial similarity in copyright disputes vary across the country, as do opinions regarding the necessity of expert witnesses. But under any standard, the threshold question—even before reaching the Daubert factors—is whether the expert testimony would be helpful to the jury, or whether the subject is one that a lay person can understand without an expert. Federal Rule of Evidence 702. As lay people, we see and compare faces every day, and the task of comparing two masks arguably does not require expert assistance.

What is notable here is not the court’s resolution of the issue but the lack of any discussion of it. Perhaps the expert’s impressive qualifications and use of artificial intelligence-assisted technology obscured the threshold question of whether those techniques were needed at all. (Plaintiff surely hopes the jury will be impressed by the “artificial intelligence” and “facial recognition.”)

The case is a helpful reminder that when offering or opposing testimony from an expert witness who relied on A.I. in a copyright dispute, litigants should remember to consider whether it will be of assistance to the fact finder in the first place.

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Tracy Ickes

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