The moment that copyright is granted to AI art is the moment that the war against corporations loses. Getty images is just going to generate endless images, copyright them all, and sue any small artist that starts having an independent thought
Agreed. I believe in a strong public domain and militantly protected fair use; AFAIC, all unaltered AI output should be considered public domain. Direct human authorship (or "substantially transformative" modification) is the benchmark for where copyright should apply.
All of the discussion over copyright of AI is a complete waste of time. Given only a bit of human editing AI art is indistinguishable from art made in entirety by a person. It will be nothing but a "feel good" law that does nothing to help the artists AI has displaced. We should be focusing directly on helping artists or others maintain their livelihood.
That's a single line needed that clarifies that derivative works originally created by AI are not copyrightable, to make it explicit and distinct from the ability to claim copyright on non-transformative works made from public domain content. AI created works cannot be copyrighted (and that should include things like software) and derivative works should now be considered non-copyrightable as well. The onus should be shifted to the creator to prove that their work is transformative in order to claim copyright over the work.
That's not how copyright works. It's perfectly legal to create exactly the same image that someone else made... as long as you didn't copy their image.
True, but that assumes that the people filing copyright lawsuits know the law and are acting in good faith. And that the recipient does, too.
If I'm an artist living paycheck-to-paycheck and I get a copyright-related cease-and-desist, I probably won't have the money or time to fight it even if I know that it's wrong.
Yeah. In a world where lawyers cost money, corporations can and will squash small artists without hesitation, with cease and desists, DMCA takedowns via youtube and similar platforms, and by threatening lawsuits they won't even have to persue because most people can't afford to fight it.
Even companies often can't afford to fight bigger companies. Like, the makers of Kimba the White Lion had a very clear case that Disney plagiarized them in making The Lion King (if you go on youtube you can find shot-for-shot scene comparisons, it's bonkers) but couldn't afford to fight it at all. And that was a company - individual artists have no chance vs disney & etc.
"Intellectual property" is a silly concept that only exists because under capitalism massive powerful corporations benefit if they can leverage the legal system to permeantly keep knowledge, innovation, and art behind a paywall, and people in society are dependent on monetary gain to survive.
We should, to the fullest extent of the law, make it such that proper credit is given to people who make things, but calling something "theft" when the person you're "stealing" from literally does not lose anything is asinine.
It's not actually called "theft" or "stealing", it's called "infringement" or "violation". Infringement is to intellectual property as trespassing is to real estate. The owners are still able to use their property, but their rights to it have nevertheless been violated.
Also, corporations cannot create intellectual property. They can only offer to buy it from the natural persons who created it. Without IP protection, creators would lose the only protections they have against corporations and other entrenched interests.
Imagine seeing all your family photos plastered on a McDonald's billboard, or in political ad for a candidate you despise. Imagine being told, "Sorry, you can't stop them from using your photos however they want". That's a world without IP protection.
right, but how often does that actually work out in people's favor, and how often does that benefit corporate interests with massive influence? how many musicians don't have the right to their own work because record companies dominate the music industry? how many artists working for large corporations are denied residuals because a condition of their work is that everything they produce is owned by their employer? writers? animators?
that's not even considering the ways in which corporations patent technologies that are the result of publicly funded research efforts. a great deal of pharmaceuticals would not be possible without massive public research grants, but the companies privatize the results of that research using the framework of intellectual property.
in theory, you're right, it does protect you against corporations using your shit without permission, but in practice it just stops you from using your shit without their permission. there are far better ways of ensuring corporations cannot exploit you than to make your creativity and invention a commodity to be bought and sold.
how many musicians don’t have the right to their own work because record companies dominate the music industry?
But not having copyright law doesn't fix that, it makes it worse. Without copyright law if you make music, a big label can grab your music and sell copies without paying you anything. Sure you can try to sell it yourself and try to educate customers that they should buy it from you. But the big label can easily out-advertise you and get into the top spots on streaming services, online and physical stores etc. and get 99% of the sales.
Same for artists, writers, programmers, photographers, or anyone else whose work is protected by copyright.
I fully agree things are not great right now, but that's not copyright laws fault. I think you need other laws and regulations to fix things, like small creators should be able to sue large companies with minimal cost if they infringeme on their copyright. And there should be some sort of provisions so companies can't trap people in horrible contracts. I'd also love to see fair use exceptions broadened in cases where the copyrighted material is just not available anymore, like old games or movies that are not sold anymore. Shorten the length of copyright too. But getting rid of it completely would not work.
But not having copyright law doesn’t fix that, it makes it worse. Without copyright law if you make music, a big label can grab your music and sell copies without paying you anything. Sure you can try to sell it yourself and try to educate customers that they should buy it from you. But the big label can easily out-advertise you and get into the top spots on streaming services, online and physical stores etc. and get 99% of the sales.
this is... really not a good example of copyright stopping this sort of stuff. seriously, look into streaming platforms, they are essentially pulling this exact stunt, down to the part about grabbing artists' music and not paying them anything, and its been extremely profitable for the record companies, who have been found to deliberately manipulate streaming numbers to ensure they get the top spots. most independent artists make very little off of streaming, but are compelled to participate because its captured so much of the market for music. i really can't exaggerate here, the situation you're describing as what would happen without copyright law is happening right now, and is being facilitated directly by copyright law as it currently exists.
The argument relies a lot on an analogy to photographers, which misunderstands the nature of photography. A photographer does not give their camera prompts and then evaluate the output.
A better analogy would be giving your camera to a passerby and asking them to take your photo, with prompts about what you want in the background, lighting, etc. No matter how detailed your instructions, you won't have a copyright on the photo.
This AI ruling is also actually completely in-line with existing precedent from the photography world.
The US Copyright Office has previously ruled that a photograph taken by a non-human (in this case, a monkey) is not copyrightable:
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
A better analogy would be giving your camera to a passerby and asking them to take your photo, with prompts about what you want in the background, lighting, etc. No matter how detailed your instructions, you won’t have a copyright on the photo.
I like this analogy a lot.
"Prompts" are actually used a lot in creative circles, whether for art or writing. But no matter how specific you are when you write a prompt for, say, r/WritingPrompts (and some of them are incredibly specific due to posters literally having an idea and hoping someone else will write it for them), the resulting story will never be copyrighted to you.
A photographer does not give their camera prompts and then evaluate the output.
I understand what you're trying to say, but I think this will grow increasingly unclear as machines/software continue to play a larger and larger part of the creative process.
I think you can argue that photographers issue commands to their camera and then evaluate the output. Modern digital cameras have made photography almost a statistical exercise rather than a careful creative process. Photographers take hundreds and hundreds of shots and then evaluate which one was best.
Also, AI isn't some binary on/off. Most major software will begin incorporating AI assistant tools that will further muddy the waters. Is something AI generated if the artist added an extra inch of canvas to a photograph using photoshops new generative fill function so that the subject was better centered in the frame?
The copyright office has been pretty clear that if an artist is significantly involved in creating an image but then adjusts it with AI, or vice versa, then the work is still eligible for copyright.
In all of the cases where copyright was denied, the artist made no significant changes to AI output and/or provided the AI with nothing more than a prompt.
Photographers give commands to their camera just as a traditional artist gives commands in Photoshop. The results in both cases are completely predictable. This is where they diverge from AI-generated art.
I think the major difference that determines copywrightability is the amount of control the artist has on the outcome. If a photographer doesn't like the composition of a photo, there's a variety of things they can do to directly impact the photo (camera positioning/settings, moving the subjects, changing lighting, etc.), before it's even captured by the camera. If someone is generating a picture with AI and they don't like the composition of the image, there's nothing they can do directly impact what the output will be.
If you want a picture of an apple, where the apple is placed precisely at a certain spot in frame, a photographer can easily accomplish this, but someone using AI will have to generate the image over and over, hoping that the algorithm decides to eventually place the apple exactly in the desired spot
No matter how detailed your instructions, you won’t have a copyright on the photo.
If you reach a certain threshold you'd be co-creator. AIs can't hold copyright, so in the analogous case you'd be sole copyright holder.
Take the movie industry and try to argue, as a camera operator, that the director has no rights at all to the video you shoot. I'm waiting.
No, the arguments presented in the article are not compelling.
A bit like how Euthanasia is foundationaly fine but it's allowance under capitalism leads to the poor being pressured to die, while capitalism oppresses us fucking over A.I. art's ability to be copyrighted is good.
If it were allowed to be copyrit corporations would fuck over creatives more than they currently do and use it to union bust.
Of course in a post-capitalist world copyright won't matter.
Therefore this shit should never get copyright protection.
There is literally no instance in which expanding the scope of copyright law is a good thing. Never.
I disagree with this reductionist argument. The article essentially states that because ai generation is the "exploration of latent space," and photography is also fundamentally the "exploration of latent space," that they are equivalent.
It disregards the intention of copywriting. The point isn't to protect the sanctity or spiritual core of art. The purpose is to protect the financial viability of art as a career. It is an acknowledgment that capitalism, if unregulated, would destroy art and make it impossible to pursue.
Ai stands to replace artist in a way which digital and photography never really did. Its not a medium, it is inference. As such, if copywrite was ever good to begin with, it should oppose ai until compromises are made.
The strongest argument against AI art is that it is derivative of the copyrighted art it is based on. A photo of a copyrighted artwork would be similarly difficult to copyright. In this sense, AI art is more akin to music sampling in that it uses original material to make something new -- and to sample music you must ask permission.
You can't copyright AI-generated art even if it was only trained with images in the public domain.
In fact, you can't copyright AI-generated art even it was only trained with images that you made.
This photography analogy is getting more tiresome the more it is repeated. It reduces the extensive work and techniques that photographers do to "using a tool", ignoring we also have tools like photocopiers whose mechanical results are not considered separate artworks, while also trying to pass the act of iterating prompts and selecting results as something much more involved than it actually is. Like many people pointed out already, what is being described is the role of a commissioner or employer. Is Bob Iger an artist because he picked what works are suitable for release? I don't think so.
One question I have is that if two people use the same prompt, do they get the same result?
If they do, how could that result be copyrighted because I can just as well reproduce the prompt, making an original "copy".
If they don't produce the same result, well it's not the human that's really doing the "original" part there, which is what copyright aims to protect, right?
On the other hand if I write an original comic book story and use AI as a tool to create the pictures, that, in my opinion, could be worth copyright protection. But it's the same as just original story, it's not really the pictures that are protected.
(And let's not forget that AIs are mostly just fed stolen works, that needs to be solved first and foremost.)
I think your understanding of AI art tools is a bit limited. Its not all solely based on prompt. Prompts are the part of most of AI art but its not the only part of it. There are things like inpainting, outpainting, img to img, outside guidance (controlnet for SD), loras, etc. Hell that doesn't even get into doing touch ups in other photo manipulation software where you can maybe get a general gist with art generator then draw over the output to get it closer to your real vision. Right now most people are only talking about the most bottom of the barrel stuff. Even though the user above hates that people are comparing photography to Ai art, the amount of "effort" required for the most bottom tier stuff (you posting a selfie of you doing duck lips or some other stupid trend) is at a similar level. Noone is arguing photographers don't put a ton of skill and knowledge into their work but it seems unfair we only compare the most shit tier AI art to the true artistic end of photography instead of equating it to you take a picture of your food. Yes there is some level of effort to it but its acting like AI art requires 0 effort. You put as much effort into it as you would anything else. A use case I would love to see as the tech advances, we are seeing a ton of CGI in traditionally animated shows. Wouldn't it be better to get a model that is trained on that specific character so you create the original scene in cgi, you run a AI art pass frame by frame, once that is done it should look far closer to the traditional style and have normal artists touch up the scene, which they already do with CGI.
I will also state since SD 2.0, they have respected robot.txt (them ignoring it prior wasn't great).
You put as much effort into it as you would anything else.
Copyright is not meant to reward effort. This is a common misconception. Thirty years ago there was a landmark SCOTUS case about copyrighting a phone book. Back then, collecting and verifying phone numbers and addresses took a tremendous amount of effort. Somebody immediately copied the phone book, and the creators of the phone book argued that their effort should be rewarded with copyright protection.
The courts shot that down. Copyright is not about effort, it's about creative expression. Creative expression can require major effort (Sistine Chapel) or take very little effort (duck lips photo). Either way, it's rewarded with a copyright.
Assembling a database is not creative expression. Neither is judging whether an AI generated work is suitable. Nor pointing out what you'd like to see in a new AI generated work. So no matter how much effort one puts into those activities, they are not eligible for copyright.
To the extent that an artist takes an AI generated work and adds their own creative expression to it, they can claim copyright over the final result. But in all the cases in which AI generated works were ruled ineligible, the operator was simply providing prompts and/or approving the final result.
This is the first actually decent article I've read on AI art. It absolutely covers my concerns and fits with my own experiences using the technology. A lot of this is stuff I've been saying, and it's nice to see that I'm not alone here.
AI art is not at all straight-forward and absolutely requires creative input in order to get something usable. Prompt engineering, to me, is itself a type of art. You may at times find that there's something you want AI to generate that it's actually quite good at, like old women playing cards around a table, but usually you're going to be looking for something it struggles with. This is when you need to be creative and inventive with prompts, thinking about things from the perspective of what's probably out there in abundance.
Recently I needed to make some rings for my upcoming Planescape-themed Conan Exiles server. I started out by asking NightCafe for rings and it output a bunch of useless junk. Using my brain, I realized it's probably much more likely that it'll have a reference point for 'wedding band', and then I'll have my ring shape and can work from there. This worked quite nicely and it started producing rings, but it was often shoving them half out of the picture as it tends to do. There are some negative prompts that sometimes help with this, but I have my own technique that I think works better.
My method for framing objects in AI art generators is to surround them with something. If you add 'surrounded by' and some other object that's slightly smaller than the object you need a clean shot of, usually you'll get your image of the whole thing. Which object you pick to surround your target object with makes all the difference.
In this particular case, I first tried to put the ring on a table surrounded by small dogs, but it got caught up in the dogs and forgot to render the ring. Eventually I landed on 'surrounded by berries', and that was the jackpot. I'm guessing this one was a good choice because of Christmas themed ads, because suddenly my pictures were all full of mistletoe blasted with the kind of bokeh you only see in jewelry ads and wedding photos. And within each shot, a nicely centered ring in half-decent focus.
Now this is where I got really lucky. During my 'surrounded by berries' iterations, the generator decided to do something weird. It put a bunch of tiny little purple berries along the outer surface of a ring, standing on its side. It was perfect. I took this iteration and used it as a base, feeding it back into NightCafe and decreasing the noise ratio down to like 20-40% while turning up the prompt weight a little and changing my prompt. Now instead of berries and wedding bands, I go back to my initial search for magic rings encrusted with glowing gems. And in one step, my berries are a gorgeous array of gemstones. A few iterations later, I have a couple of decent rings to bring into GIMP and do some work with.
After pathing out the rings, separating the gems, adjusting the colors, and creating a few iterations with different colored bands and gem stones for my different finalized options, I had my results. A little blurry, okay, but totally fine for an inventory item thumbnail. Looks gorgeous.
Personally, I've dipped my toes into all sorts of art. I write, I take pictures, I sing, I play around with painting, I've made animations, games, mods, videos, weird unpalatable noise music; if it's a method of creative expression I may not be particularly good at it but I've almost certainly tried some version of it. And to me, this feels like creative expression. It feels like art.
Working with AI art feels like trying to collaborate on a project with an alien robot. You're trying to take these presumptions that we have and figure out how to get a workable result from something that fundamentally doesn't understand any of it. It's this really fascinating exercise in exploring this almost dream-like logic that's heavily rooted in media consumption, and weirdly enough your own understanding of media culture can be a way of teasing out what you want.
I don't just go and say 'please give me one rabbit' and get a rabbit. It doesn't feel like handing the project off to another artist with some notes and coming back to see what they made, it feels like an actively creative process. It doesn't feel more creative when I'm editing those images than when I'm digging through this strange robot-logic dreamscape looking for them.
And like, given that I could literally just take a picture one of my own rings and edit that, I don't see how it's less mine via creative output. I bought the ring, I didn't spend an hour digging it out of a morass of nonsense.
Frankly, I care little about law and less about money. I'll make the things I'm inspired to make with the methods I'm inspired to make them with and we'll see what happens. Maybe I'll make something people like, maybe I'll cut my own ear off and die penniless, but the opinions of the copyright office on what legal claims I can make around my work aren't really a primary factor in that or in my decision making when it comes to art.
I do hope they'll read articles like these and talk to folks with similar perspectives and find a better take, though.
Thank you for describing your process in such detail. I'm sorry if this is going to come off as overtly contrary; that's such an impersonal convoluted way to make an image. There are good illustrators out there that can sketch roughs and make a beautiful finished painting in a night, all right out of their head. Frank Frazetta would be laughing in his grave at AI art.
The comparison between photography and AI generated images falls flat on its face when you think about it.
A camera requires not only human interaction, but going some place, setting up and having to process the image after the fact.
Contrast that with an AI farm constantly generating and squeezing out copyrightable material while scraping the web for any human made work it can emulate.
In the end what it will mean is that certain companies will be fuzzing the hell out of the copyright system to gain as much intellectual property as possible while diminishing the creative possibility of human beings.
It is in effect just a way to make companies richer and remove creative jobs from the market. Anybody who doesn't see that is naive.
BUT I think that in cases of that image you should be able to apply for copyright. But just automatically getting it, as is the law in many countries? No. That's a really bad idea.
Modern copyright sucks balls anyway
The article compares Photography, (which despite being "created" by nature is copyrightable), to AI art. The difference between AI art and photography is that AI art is derivative of other artists and generalized into a Model. Nature is not derivative of other photography. Derivative work has special exemptions in copyright law which prevents it from being subject to copyright.
Copyright itself is weird.
That said, a simpler way to handle this would be that the image generator model is a tool. And it doesn't really matter if your input is through a paintbrush or a prompt in an image generator, you're responsible for that piece of content thus you have copyright over it.
You can further couple it with the argument @luciole@beehaw.org used, that AI art is derivative work, and claim that the authors of the works used to train the model shall have partial copyright over it too.
AI art is derivative work, and claim that the authors of the works used to train the model shall have partial copyright over it too.
To me this is a potential can of worms. Humans can study and mimic art from other humans. It's a fundamental part of the learning process.
My understanding of modern AI image generation is that it's much more advanced than something like music sampling, it's not just an advanced cut and paste machine mashing art works together. How would you ever determine how much of a particular artists training data was used in the output?
If I create my own unique image in Jackson Pollock's style I own the entirety of that copyright, with Pollock owning nothing, no matter that everyone would recognize the resemblance in style. Why is AI different?
It feels like expanding the definition of derivative works is more likely to result in companies going after real artists who mimic or are otherwise inspired by Disney/Pixar/etc and attempting to claim partial copyright rather than protecting real artists from AI ripoffs.
[Warning: IANAL] The problem is that you guys assume that those generator models are doing something remotely similar to humans studying and mimicking art from other humans. They don't; at the end of the day the comparison with music sampling is fairly apt, even if more or less complex it's still the same in spirit.
Furthermore from a legal standpoint a human being is considered an agent. Software is at the best seen as a tool (or even less), not as an agent.
Quantifying "how much" of a particular artist's training data was used in the output is hard even for music sampling. Or for painting, plenty works fall in a grey area between original and derivative.
It feels like expanding the definition of derivative works is more likely to result in companies going after real artists who mimic or are otherwise inspired by Disney/Pixar/etc and attempting to claim partial copyright rather than protecting real artists from AI ripoffs.
Following this reasoning (it'll get misused by the American media mafia), it's simply better off to get rid of copyright laws altogether, and then create another legal protection to artists both against the American mafia and people using image generators to create rip-offs.
That doesn't work with AI for a variety of technical and practical reasons.
Two people could, completely coincidentally, generate something that is so similar that it looks the same at a glance... even with dramatically different prompts on dramatically different models.
No, the output of an AI is fundamentally "coincidental" and should not be subject to copyright. Human intent and authorship MUST be a significant factor. An artist can still use AI in their workflow, but their direct involvement and manipulation must be meaningfully "transformative" for copyright to apply in a fair and equitable way.
But it does matter whether your input is a brush or a prompt.
If you physically paint something with a paintbrush, you have a copyright over your work.
If someone asks you to physically paint something by describing what they want, you still have copyright over the work. No matter how picky they are, no matter how many times they review your progress and tell you to start over. Their prompts do not allow them to claim copyright, because prompts in general are not sufficient to claim copyright.
The author of this opinion has a point, and that artist not getting ownership of works involving AI image generation is a consequence, but I like that it also discourages big studios from taking AI generated mishmash as a drop-in replacement for human produced artwork. If they used it some video generation program at this moment to replace strikers, there are grounds that the studios have no ownership of it.
Anyways, I think copyright law should be fully torn down and rebuilt to reasonable levels, so AI may be a good catalyst to achieve this vision of mine.
As an author, I say cut the term waaay down. 12 years plus the option for a 12-year one-time renewal.
Some will get screwed, but the entire populace will gain.
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