The free-for-all of AI image creation on X had a rude wakeup this week when Nintendo's copyright infringement hunter Tracer, as first reported by the Verge, laid takedown notices on several users who had shared images of Mario built using X's Grok-2 AI model. Tracer sent dozens of users the notices under the Digital Millennium Copyright Act (DMCA).

The Grok AI chatbot on X employs the FLUX.1 model to produce images, but the AI didn't seem to have much of an intellectual property filter when it came out. That led to many images of characters like Mario behaving in ways their parent companies would not be thrilled about seeing. For instance, pictures of the Nintendo mascot drinking and smoking cigarettes were among the most common targets of the DMCA notices.

Tracer even uses AI tools to spot when its clients have had their trademarks or copyrights violated. These AI tools are designed to scan large volumes of content for any potential infringement. Of course, those AI tools are as imperfect as the image generators, which meant even hand-drawn fan art of Mario reportedly provoked DMCA notices in some cases. That raises concerns about potential overreach since fan art is (usually) not illegal to make or share 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 AI image creation using its IP. The company's history of legal action over 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 imitation Pokémon game is getting headlines now, it may seem small potatoes should the video game giant go after Elon Musk's xAI and X or the open-source Flux.

Nintendo may want to come in early and hard against AI-generated content, which it believes violates its IP rights, but it may be too late. Though OpenAI’s DALL-E, Google’s Gemini, Midjourney, and many other image generators have strict rules in place to limit these kinds of images from their own AI models, Flux and others are clearly not as bothered 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.

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