this post was submitted on 21 Aug 2023
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There is a difference here between an AI and a "Professional Artist". In the case of the Professional Artist they are the closest thing to the art that is considered human input. But in the case of the AI generated work - it is the prompter. In this case the AI is more like photoshop or a camera than it is a Professional Artist.
At least there are arguments that can swing this both ways. Only a court would be able to decide for sure. But I am not convinced that it is a slam dunk case in favour of making AI generated works uncopyrightable.
You might think of it this way - if you hire a photographer, and let them take some photos of something letting them have control over the process, then they will likely have a claim over the copyright.
But if you guide them on everything - from setting up the objects in a scene, to the lighting, to the settings on the camera and everything else to the point all they are doing is clicking a button on the camera - then who has the claim in that case? It is a far less clear cut case. I could see courts leaning towards the person with more of the creative input into the work than the one who simply took the picture. As it is the creative process that is important, not the one that pushed a button. Though typically the one pushing the button is also the one with most creative input into a photograph - so this case has not come up as far as I know.
The case is harder to make with an painter though as the process of painting I think would be considered a substantial amount of creative input - much more so than taking a photo. Even if they were fully prompted by someone else.
But with an AI, I think it would be more similar to that of the photographer than a painter. So I figure a judge would count a prompt - as that is the most human involved creative part of the process. Much more so than the case of the photographer or a painter.
That's thing, though. That's the question the court is answering. It says that the closest human is STILL NOT CLOSE ENOUGH if they aren't doing the same level of control and work as a human would be doing if they gave them the prompt.
If you use an AI as just another tool, that's one thing. But just giving a prompt is NOT creating art.
This article was talking about the Thaler v. Perlmutter case - which Thaler confirmed
So he was never trying to claim that he created the work or had any involvement in its creation at all. Only that he as the owner should get copyright over the work. As far as i can tell his AI generated the images without any prompt at all. So this case does nothing to further the argument over how much a prompt can be considered creative works. So none of the articles based on this case are doing any justice to what this case represents.
Though I have just been made aware of this copyright claim that does a far more damning case for prompts not being considered creative enough to be able to claim copyright. Though I don't know if this has been tested in court yet.
TLDR write a creative poem as an input
Don't forget that there can be multiple independent copyright claims. In the example of the painter, both the painter and the commissioner can own copyright to their respective contributions to the result.