The freedom of AI image creation on X got a rude awakening this week when Nintendo copyright infringement hunter Tracer, as first reported by The Verge, placed takedown notices on several users who had shared images of Mario built using X's Grok-2 AI model.. Tracer sent dozens of users notices under the Digital Millennium Copyright Act (DMCA).
The Grok X artificial intelligence chatbot uses the FLUX.1 model to produce images, but the AI didn’t appear to have an intellectual property filter when it was released. That led to a lot of images of characters like Mario behaving in ways that their parent companies wouldn’t be happy to see. For example, images of Nintendo’s mascot drinking and smoking cigarettes were among the most common targets of DMCA notices.
Tracer even uses AI tools to detect when its clients have had their trademarks or copyrights infringed. These AI tools are designed to scan large volumes of content for potential infringements. Of course, those AI tools are just as imperfect as image generators, meaning that even hand-drawn Mario fan art triggered DMCA notices in some cases. That raises concerns about potential overreach, since it’s not (normally) illegal to make or share fan art outside of certain circumstances.
Art attack
Since the takedown notices came from Tracer, Nintendo’s explicit instructions, if any, to Tracer have not been revealed. But it’s not hard to imagine Nintendo wanting to be aggressive about creating AI images using its intellectual property. The company’s history of legal action for unauthorized use is a deterrent in many cases, though random fans using AI engines have not been a major target before. But while Nintendo’s lawsuit against Palworld and its Pokémon knockoff game is making headlines now, it may seem like a small thing if the gaming giant is going after Elon Musk’s xAI and X or the open-source Flux.
Nintendo might want to crack down early and hard on AI-generated content it believes violates its intellectual property rights, but it may be too late. While OpenAI’s DALL-E, Google’s Gemini, Midjourney, and many other image generators have strict rules in place to limit such images of their own AI models, Flux and others clearly aren’t all that concerned about it. Whether DMCA notices or even lawsuits will stop people from making images of Mario acting in ways you’d never see in an official video game remains to be seen.
