FRIEND OR FOE? HOW ARTIFICIAL INTELLIGENCE IS CHALLENGING THE LAW’S APPROACH TO ART

Image: Big Blue Lavender Bay removed from the Court of Appeal by police. Photo by Justin McManus.

Guest Work Agency Director, Alana Kushnir, and Paralegal Mia Schaumann recently wrote about how artificial intelligence is challenging the law’s approach to attribution and forgery detection for the recent issue of the Australian Intellectual Property Law Bulletin.

SETTING THE SCENE

The law has always played catch up with technological change. With the evolvement of artificial intelligence (AI), that sentiment is alive and well. AI is “computer technology that aims to simulate intelligent human behavior”[1].  AI’s relationship to the law is particularly provocative in the field of art. When it comes to the authentication of artworks, connoisseurship, provenance documentation and scientific analysis are the three main attribution tools used by historians and conservators. However, some experts are adopting machine learning technology as an alternative method of authentication. However, we are yet to see these findings admitted in legal proceedings.

THE APPLICATION OF MACHINE LEARNING TO ATTRIBUTION AND FORGERY DETECTION

In its simplest form, the way in which machine learning can be applied to attribution and forgery detection is as follows. A dataset of high-resolution images is built using legitimate works by the artist. To improve the algorithm’s discrimination capabilities, they include in the training set paintings by artists of similar style and chronology. The algorithm “learns” the artist’s stylistic traits from the dataset and uses this knowledge to detect the probability of forgery. A number of private companies have  been set up to provide AI artwork services. For example, the Switzerland based Art Recognition has developed an algorithm for detecting fakes using a single photograph of the artwork. Notwithstanding such recent efforts, the admission of machine learning findings in court cases concerning art authentication is largely untested.

THE APPLICATION OF ARTIFICIAL INTELLIGENCE TECHNOLOGY BEYOND LEGAL SCHOLARSHIP

It is unclear whether a court would establish the admissibility of evidence produced by a machine learning tool, and if they were, what weight would be given to it. To date, the proposition of using machine learning findings as evidence has primarily the domain of legal scholars. Lord Sales, Justice of the UK Supreme Court, gave a public address in Singapore on “Artificial Intelligence and Evidence”[2] where he suggests that AI could be a game-changer when it comes to the treatment of evidence in legal proceedings. Perhaps it’s only a matter of time then for the admission of machine learning findings to be tested in a court. Read the full article here.

Read the second part to this research, in which Kushnir and Schaumann consider the intellectual property issues concerning art made with artificial intelligence here.

[1] J Greene and A M Longobucco “Is Artificial Intelligence the Newest Trend in Fashion?”, New York Law Journal 24 August 2018 www.law.com/newyorklawjournal/2018/ 08/24/artificial-intelligence-the-newest-trend-in-fashion/.

[2] See Lord Sales Artificial Intelligence and Evidence Seminar Paper, Singapore SLATE III, 15 September 2021.