The Globe and Mail with Teresa Scassa 4 October, 2018
Adam Basanta is a human who makes art who wanted to see if a machine could make art, too. So he created what he calls an “art factory” – a computer system that runs on its own and churns out a stream of randomly generated abstract pictures.
He wanted to explore issues of aesthetics. Instead, he’s exploring issues of copyright.
Basanta is now being sued for trademark infringement because of an image the machine created.
Teresa Scassa, a professor at the University of Ottawa who specializes in information law, said this is the first lawsuit of its kind that she’s seen. But she expects there to be many more as industries, especially creative ones, move toward automation and the use of artificial intelligence.
“This is the tip of the iceberg for this kind of litigation in Canada,” Scassa said.
Broadly, Basanta’s machine has two stages: creation and validation.
Creation happens with a hardware setup that Basanta likens to a Rube Goldberg machine: two computer scanners tipped on their sides and pointed face to face, endlessly scanning each other, and the results – influenced by shifts in the room’s lighting, randomized settings and an automatically moving mouse – are interpreted by a computer and turned into colourful abstract pictures.
“I was really surprised that the images looked a lot like canonical 1950s abstract paintings,” Basanta said. “I literally had a moment where I had made a piece and I thought: I’ve seen this before. I looked it up and I found a Rothko that was very, very similar to it.”
The second stage is validation. Another computer running a custom-built program automatically checks each image against an online database of real art made by human hands. If the machine-made image is similar to one that has been human-made, the computer dubs it a success and keeps it; if there is no match, the image is deleted forever.
“If it’s similar enough to a work that the art market or international collections has deemed art-worthy, then that image, which is similar to it, is also art-worthy. It becomes art,” Basanta said.
The art factory churns out 1,000 to 1,500 images each day, Basanta estimates, and 20 to 50 of those get validated. (He does not sell any of the online images.)
The whole setup and many of its images were exhibited at the Ellephant gallery in Montreal this summer. The validated results are also available on a website, a Twitter account and an Instagram page. Each machine-made image is given the kind of name only a computer could come up with: a percentage representing how similar the computer thinks the work is to an existing one and the name of the original artwork it was validated against.
This is where Chamandy’s lawsuit comes in.
In June, someone – it’s not clear if it was Chamandy herself or someone who works with her – did a Google search for her name and the name of a 2009 wall installation she made called Your World Without Paper.
The first result in the Google search, according to documents filed in court, was Chamandy’s website. But the second and third results pointed to Basanta’s website, because his machine had named one of its own pictures after one of hers.
The offending image, some magenta lines on a field of indigo, is called: 85.81%_match: Amel Chamandy “Your World Without Paper”, 2009.
“These acts of infringement illegally divert internet traffic away from NuEdge’s website and allows you to unduly benefit from the goodwill and reputation associated with the name and trademark AMEL CHAMANDY,” her lawyer, Pascal Lauzon, said in an e-mail to Basanta that was disclosed in court.
Chamandy said both an artist’s name and their work should be protected online.
“The digital world has become a means for artists and art dealers to promote their works and for that reason, it is important for copyright to adapt to the digital era in order to keep protecting artists who worked hard to be able to live from their art,” Chamandy told The Globe and Mail in a statement.
She is seeking $40,000 in damages.
As he and his lawyers prepare to fight the lawsuit, Basanta said there’s a least one positive outcome of it. His project was meant to explore the interface of art and commerce, and man and machine. And now, through the lawsuit, the project is dealing with those topics in the real world, too.
“I’m glad that it is obvious it’s touching on these issues,” he said, adding: “that said, I wasn’t expecting to be sued, nor was I particularly thrilled about it.”