Tesla ‘Blade Runner’ Image Suit Blends New Tech, Old Principles

A lawsuit accusing Tesla Inc. of using an AI-generated “Blade Runner 2049" image at an event this month will hinge on the same legal principles as cases involving a Nike logo and a Dr. Seuss-Star Trek mashup.

Alcon Entertainment LLC’s suit claims Elon Musk’s company fed images from the 2017 film into an artificial intelligence image generator to create an output with a matching aesthetic, which Musk used in a presentation about the company’s development of robo-taxis. Tesla requested permission from the film company, was refused, then used the image of a man overlooking an apocalyptic cityscape, according to Alcon’s complaint in Los Angeles federal court.

The allegation Tesla used novel technology to create the image is irrelevant to analyzing whether it’s a close enough copy to infringe Alcon’s rights, law professors said. And whether training the AI model on copyrighted images infringes is a separate, novel question being tested by several pending lawsuits.

“AI complicates questions about people’s subjective intent and motivation, but at the end of the day the issue of whether images are infringing of another is whether an ordinary observer would find them to be the same,” intellectual property law professor Mark McKenna of UCLA said. “It doesn’t matter the tool you use to create it, just the threshold of substantial similarity.”

That doesn’t preclude jurors from being affected during deliberations by the act of feeding specific copyrighted material into AI , even if legally they shouldn’t, IP law professor Jessica Silbey of Boston University said. And how judges handle cases like Alcon’s will reverberate given the ease of using AI to create stylistically similar images, and the potential litigation over them..

“This is something that we will continue to see as AI becomes more widespread,” Amelia K. Brankov of Brankov PLLC said.

Style, or Protectable?

Alcon’s Oct. 21 complaint in the US District Court for the Central District of California said Tesla “apparently” fed images of a hazy orange hellscape from “Blade Runner 2049" into an AI image generator. The complaint highlighted one image featuring a silhouetted man walking from a car toward a city skyline, and included several other stills from the same film sequence.

Tesla used the resulting image—a silhouetted man standing on a rocky elevated position looking at a hazy, similarly-colored skyline—in a slide during its unveiling of its driverless Cybercab concept, the complaint said. The presentation was designed to generate consumer and investor interest, Alcon alleged.

Whether the image is an infringing derivative of the movie depends on whether it copied protectable expression, not merely its style, attorneys said. A pair of successful cases alleging infringement of Dr. Seuss books in California federal court leaned on similarities beyond the author’s iconic illustrative and poetic style.

In one, creators of a book mashing up elements of Star Trek with “Oh, the Places You’ll Go!” acknowledged they “slavishly” copied entire full-page illustrations before adding Star Trek characters and words. They instead argued fair use, a defense for uses that are otherwise infringing. The US Court of Appeals for the Ninth Circuit reversed a lower court’s finding of fair use in 2020.

“I don’t think there’s going to be a very good fair use argument” based on the image’s commercial use and shared purpose of depicting an apocalyptic cityscape, IP law professor Cathay Y. N. Smith of the Chicago-Kent College of Law said.

But Silbey said the question of fair use probably wouldn’t matter because the image likely doesn’t infringe. Most commonalities with the film stills aren’t protectable by copyright, she said, noting a man looking at a hazy apocalyptic cityscape, by itself, is an unprotectable idea, and that there are only so many general colors that make sense, with orange being a common one in similar images. Tesla’s image shares little else in common with the “Blade Runner” images in the suit, she said.

“This is not a fair use situation,” Silbey said. “This is whether what was copied was protectable.”

Alcon declined to comment beyond the allegations in the complaint. Tesla didn’t immediately respond to a request for comment.

Brankov represented Starbucks Corp. in a lawsuit from Brooklyn artist Maya Hayuk claiming it ripped off her distinctive style on its cups and marketing materials, which was dismissed in 2016. The court said it couldn’t grant a “monopoly” on what was essentially “use of overlapping colored rays, and colors and shapes.” The parties settled during Hayuk’s appeal.

“Style is not protectable,” Brankov said. “It’s a hard line to draw between what’s inspiration and what’s infringement.”

Picking Images Apart

Alcon’s complaint shares more in common with a different Ninth Circuit case than the Dr. Suess lawsuits, Silbey said. A magazine photographer in 2015 said Nike Inc. stole from his photo in which Michael Jordan assumed a ballet-style grand jeté pose under a basket. Nike created a copycat photo in a different setting, which led to the famous “Jumpman” logo.

But the Ninth Circuit rejected the argument that the pictures—and logo—were substantially similar. The idea of Jordan jumping under a basket isn’t protectable, and there were subtle differences in Jordan’s precise positioning—which as the one protectable commonality would have to be “virtually identical,” the court said.

But while the use of AI doesn’t affect how its outputs are analyzed under copyright law, Musk and Tesla would likely have had to make a copy to get it into the AI, Smith said.

Whether feeding copyrighted images to AI constitutes infringement or fair use are novel questions “divorced” from the output, “a separate question being litigated on various fronts,” he added. Open AI, Meta, and other AI companies are facing a bevy of pending copyright lawsuits on the question of training data.

“On the input side it’s a little bit different,” Brankov said. That “echoes what we’re all talking about with the other AI cases: ‘Is there some initial active infringement in the input phase?’”

The case is Alcon Entertainment LLC v. Tesla Inc., C.D. Cal., No. 2:24-cv-09033.