X’s freewheeling AI image-making got a sudden awakening this week, when Nintendo copyright infringement hunter Tracer issued takedown notices to several users who shared images of Mario created using X’s Grok-2 AI model, as first reported by The Verge . Tracer sent notices to dozens of users under the Digital Millennium Copyright Act (DMCA).
X’s Grok AI chatbot uses the FLUX.1 model to generate images, but when the AI was released it didn’t seem to have many intellectual property filters, which resulted in a lot of images of characters like Mario doing things the parent company wouldn’t want people to see — for example, images of Nintendo’s mascot drinking alcohol or smoking cigarettes were among the most frequent targets of DMCA notices.
Tracer also uses AI tools to discover when its clients’ trademarks and copyrights have been infringed. These AI tools are designed to scan large amounts of content for potential infringement. Of course, these AI tools are as imperfect as image generators, and even hand-drawn fan art of Mario has reportedly triggered DMCA notices in some cases. This raises concerns about possible overreach, as fan art is (usually) not illegal to create or share outside of certain circumstances.
Art Attack
The takedown notice was issued by Tracer, so it’s not clear whether Nintendo explicitly instructed Tracer to do so. But it’s not hard to imagine Nintendo wanting to be aggressive against AI image creation using its IP. The company’s history of legal action against unauthorized use has often been a deterrent, but random fans using AI engines haven’t been a big target until now. But while Nintendo’s lawsuit against Palworld and its copycat Pokémon games is getting all the attention right now, it might not seem like much for the video game giant to go after Elon Musk’s xAI and X, or the open-source Flux.
Nintendo may want to get tough early on against AI-generated content that it believes violates its intellectual property rights, but it may already be too late. OpenAI’s DALL-E, Google’s Gemini, Midjourney, and many other image generation tools have strict rules restricting this kind of imagery from their AI models, but tools like Flux apparently don’t care as much. It remains to be seen whether DMCA notices and lawsuits will stop people from creating images of Mario doing things that would never be seen in an official video game.
