The free-for-all creation of AI images on the X got a rude awakening this week when Nintendo’s copyright hunter Tracer became the first reported by the Verge, has filed takedown notices against several users who shared images of Mario built using X’s Grok-2 AI model. Tracer has sent notices under the Digital Millennium Copyright Act (DMCA) to dozens of users.
The Grok AI chatbot on X uses the FLUX.1 model to generate images, but the AI didn’t appear to have much of an intellectual property filter when it launched. That led to a lot of images of characters like Mario behaving in ways that their parent companies wouldn’t be happy with. For example, images of the Nintendo mascot drinking and smoking cigarettes were among the most common targets of DMCA notices.
Tracer even uses AI tools to spot when its clients’ trademarks or copyrights have been infringed. These AI tools are designed to scan large amounts of content for potential infringement. Of course, these AI tools are just as imperfect as the image generators, meaning that even hand-drawn Mario fan art reportedly triggered DMCA notices in some cases. This raises concerns about potential violations, since fan art is (usually) not illegal to create or share outside of certain circumstances.
Art attack
Since Tracer’s takedown notices came in, Nintendo’s explicit instructions, if any, to Tracer have not been made public. But it’s not hard to imagine that Nintendo would want to be aggressive about AI image creation using its IP. The company’s history of legal action over unauthorized use is often a deterrent, though casual fans using AI engines haven’t previously been a huge target. But while Nintendo’s lawsuit against Palworld and its knockoff Pokémon game is making headlines now, it may seem like small beer for the video game giant to go after Elon Musk’s xAI and X or the open-source Flux.
Nintendo may want to crack down early on AI-generated content it believes violates its intellectual property rights, but that may be too late. While OpenAI’s DALL-E, Google’s Gemini, Midjourney, and many other image generators have strict policies limiting such depictions of their own AI models, Flux and others clearly aren’t as concerned. Whether DMCA notices or even lawsuits will deter people from creating depictions of Mario behaving in ways you’d never see in an official video game remains to be seen.