But where do you draw the line? If AI imagines 3 people around a business table in front of a flip chart, is that copyright infringement on similar stock photos? Note that in the AI created image, the people are unique, they never existed, the business table is unique, the flip chart is unique, and in general you can't point to any existing photo it was trained over and say "it just copied this item here".
If so, why isn't it also copyright infringement when a human photographer stages another similar shot?
> status quo in the United States is that AI-generated images are not currently eligible for copyright.
Aren't they? I thought it was just that the copyright holder has to be a recognized legal entity (so, the copyright would have to belong to the human operator or their employer, not to the ai model itself).
> Therefore, the product of a generative AI model cannot be copyrighted
Is that last bit from the Copyright Office, or is it the author's interpretation? Because I could just as easily imagine the battle being over who or what was the actual creator of the content (i.e. is it a derivative work), rather than whether the thing the machine created is eligible for copyright.
To remove the AI from the equation for a second, imagine that I took four images of living artists' work, placed them in a 2x2 grid, and called that a new artwork. There are two seperate questions to consider: (1) have I infringed upon the original authors' copyrights, and (2) is the new thing I have created eligible for copyright.
The stance that there is "no copyright protection for works created by non-humans" only addresses the second question, not the first question of how it interacts with existing copyrights.
> What’s the test for “has never been made and is totally new”?
the existing copyright rulings are sufficient to determine this, and has nothing to do with ai models.
You've already pointed out a case - if you use an AI to generate an image which has sufficient likeness to an existing one, then the AI portion is irrelevant to the ruling. You could've made that same image in photoshop without AI, and should obtain the same ruling.
But in the above circumstance, the silkscreen used in the creation of the image does not itself infringe. And replace that silkscreen with AI model, nothing has changed.
> It's not as though the AI had a lover who left them and drew inspiration from that experience to become a more effective AI.
Well then your ex-lover clearly deserves co-songwriting credits. As well as their parents. And anybody who has influenced them personally, or even anyone who made the food that they've eaten. There's gotta be a point at which the original is just too far removed from the end result for it to be infringing, otherwise you could just keep going.
Also is a model that classifies things isn't the same as those things themselves, or images of those things, and would most I certainly hope it would be considered transformative enough to not be infringing (I am not a lawyer though). I could give it an image of a dog, and it will tell me what it thinks it is. But there doesn't seem to be any way for me to say "show me a dog" and get back any sort of image, infringing or not.
Some thought experiments: Let's say you have a copyrighted photo, and I design an API that allows anyone to upload a photo and get a true/false of whether or not it's the same file as your photo. Is this copyright infringement if I never release the original photo?
Based off of current copyright statutes, nothing about generative AI creating stock photos by being trained on stock photos would violate copyright law; only if it was substantially similar to an existing work and was not transformative of that existing work. Just because the AI (read: the human) has seen work doesn't mean that creating a photo with the same subject and even with the same framing and techniques is inherently infringement.
> As the images are generated by an AI, they are non-copyrightable and are therefore public domain.
This part seems false. If I take copyrighted photos and run it through something like an "AI" filter to change the colors slightly, the photos aren't suddenly public domain.
If you steal from enough people at once is it then legal?
> no artist can hold the honor of having invented generic “photography”
That’s entirely beside the point. Copyright still applies to photographs, and training has been occurring on copyright-protected photographs.
> It’s a failure mode
It seems like maybe you didn’t fully parse what I said there, which wasn’t about reproducing works closely enough to violate copyright, it was about the broad goal of AI, which absolutely is to train on fixations (in Copyright parlance) and be able to produce mashup results that mimic the inputs as closely as possible without breaking the law. Because the goals here and the design intent here are to skirt the legal lines, it’s not at all surprising that sometimes we will cross it, whether it counts specifically as overfitting or not. When the broad design goal combined with users and prompts seeking specific outcomes is riding the line between mimicking style and clear copying, we’re basically priming the overall system to live in a legal gray area.
This is outside the question of whether consuming copyrighted training material is legal, regardless of whether any reproductions occur. Watching copyrighted movies is not legal, I don’t have to share them with anyone else. Why should AI training that consumes copyrighted material even be legal in the first place? (Maybe it’s not.)
> The challenge with these models is that they’ve clearly been trained on (exposed to) copyrighted material, and can also demonstrably reproduce elements of copyrighted works on demand. If they were humans, a court could deem the outputs copyright infringement, perhaps invoking the subconscious copying doctrine (https://www.americanbar.org/groups/intellectual_property_law...).
Every single human has been exposed to copyrighted material, and probably can reproduce fragments of copyrighted material on demand. Nobody ever writes a book or paints a picture without reading a lot of books and looking at a lot of paintings first. For a "subconscious copying" suit to apply, you need to demonstrate "probative similarity" - that is, similarity to copyrighted material that is unlikely to be coincidental.
In other words - it's not clear to me that the situation with AI is any different than with a human, or that it presents new legal challenges. If it looks new, it is new.
> how do you know if the image that just generated is substantially similar to an existing copyright work?
This is already a problem with biological neural nets (i.e. humans). I remember as a teenager writing a simple song on the piano, and playing it for my mom; she said, "You didn't write that -- that's Gilligan's Island!" And indeed it was. If I had made a record and sold it, whoever owned the rights to the Gilligan's Island theme song could have sued me for it, and they would (rightly) have won.
There's already loads of case law about this; the same thing would apply to AI.
> what is stopping someone from generating millions of images and copy righting all the "unique" ones? Such that no one can create anything without accidental collisions.
Right now what's stopping it is that only humans can make copyrightable material; whatever is spat out from a computer is effectively public domain, not copyrighted.
> Of course, a court needs to decide this. But I can’t see how allowing an AI model to view a picture constitutes making an illegal copy.
Memory involves making a copy, and copies anywhere except in the human brain are within the scope of copyright (but may fall into exceptions like Fair Use.)
>If someone has legally protected their artwork, you can't just apply a photoshop layer to it and claim it is yours as fair use though, right?
That depends on what the layer was, and there is current cases heading to supreme court that have something similar to that so we may see
however commentary is just one type of fair use and would not be a factor here, nor is anyone claiming the AI is reselling the original work. The claim is that copyright law prevents unauthorized use of a work in the training of AI, AI training could (and likely would) be treated as research, and the result of the research is a derivative work wholly separate from the original and created under fair use
There is a common article that gets passed around where a person tried to get copyright assigned to a machine and that keeps getting denied. That is very different from "AI generated images cannot be copyrighted".
If I write a program to randomly generate an image of squares of different colors:
- I, a human, can have copyright over the program text itself as a literary work
- I, a human, can have copyright over the image output of the program
Then the AI is performing a sort of collage of copyrighted work and the AI / prompt writer would not own the copyright to the derivative work. If a photographer stages a photo based on an existing photo, and it shares enough features with the original work, it likely would be copyright infringement.
> AI companies could very reasonably argue that use of images for training AI models is transformative and qualifies as fair use
Yep. They could. And people do.
But this particular use is entirely new, though. Old conceptions of fair use can't and shouldn't cover it. "Transformative"? Sure, but there's a difference between transforming a work once and laying hold of it in automation to be transformed on request millions or billions of times in degrees ranging from simple to convoluted. It's hard to argue that the right to this exists in fair use when awareness of the possibility didn't exist when fair use conceptions were constructed.
The output isn't the issue so much as the consent & consideration for use of the input. We'll need case law or statutory law that understands this. It should be possible, but it should be possible on an opt-in basis. When you're training a model, you should know.
> AI-generated images are no more infringing than human-generated images which show influences from other artists.
If we end up with a policy differentiating the two and privileging humans and works created by them, I'm fine with that.
> If they were humans, a court could deem the outputs copyright infringement
I'm not sure I understand how this is self-evident. The closest equivalent I can see would be a human who looks at many pieces of art to understand:
- What is art and what is just scribbles or splatter?
- What is good and what isn't?
- What different styles are possible?
Then the human goes and creates their own piece.
It turns out, the legal solution is to evaluate each piece individually rather than the process. And, within that, the court has settled on "if it looks like a duck and it quacks like a duck..." which is where the subconscious copying presumably comes in.
I don't know where courts will go. The new challenge is AI can generate "potentially infringing" work at a much higher rate than humans, but that's really about it. I'd be surprised if it gets treated materially different than human-created works.
>Just because the image is publicly available doesn't mean it should have been copied.
It wasn't copied - it was viewed, which is perfectly legal.
The AI does not have a copy of any of the the images it learned from. It merely learned styles and concepts of many images with associated text for those styles and concepts.
> This AI, in this thread, is human operated. Those images are likely copyrighted.
No, again. The AI can be human operated, and thus it can produce copyrightable works. But it can also be operated by other things, so it is not by default copyrighted. Your own case as well as the monkey selfie are just fine for this.
> Why are you avoiding citing a case to back up your claim?
Our debate here is not defending premises with evidence, it's you not understanding what the premise is.
>> Cameras don't "generate" an image, if they didn't they'd have the same copyrightability issue that AI generators have
Please elaborate on your statement above. How would you characterize the method by which cameras produce images, and with respect to copyright law, how does this differentiate camera produced images from images produced by other machines?
> Outputs from LLMs, machine generated art, and machine generated music probably are not copyrightable either.
I don't have a strong sense of whether this is reasonable (I see arguments both ways) but I do think it's pretty strongly at odds with how we treat photographs. There are a bunch of photos on my phone where I unquestionably own the copyright, despite putting in much less creativity than I did for some AI images I've generated.
I don't think it's clear how to resolve this, but I do think that if we are going to protect photos and not prompted AI images, the distinction needs to turn on something other than whether "sufficient creativity" was applied to the input of the mechanical system.
Edited to add: It's probably also worth calling out that the question of whether we protect the work produced by a person's use of mechanical system is a separate one from whether we protect the work of others when it is (in various ways, to various degrees, with various likelihoods) reproduced by use of those mechanical systems.
But where do you draw the line? If AI imagines 3 people around a business table in front of a flip chart, is that copyright infringement on similar stock photos? Note that in the AI created image, the people are unique, they never existed, the business table is unique, the flip chart is unique, and in general you can't point to any existing photo it was trained over and say "it just copied this item here".
If so, why isn't it also copyright infringement when a human photographer stages another similar shot?
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