The court has already ruled that you can't own the derivative work anyways, because copyright law requires an individual artist. If I ask bob to make a picture for me, bob actually owns the copyright to start (but can assign it to me). I don't automatically get given copyright because I 'prompted' bob with what I wanted drawn (draw me a mouse). Copyright is given to the artist on the artists specific output.
If I ask an AI for a picture, there is no artist 'bob' to be assigned ownership under copyright law and therefor it's not copyrightable under existing law.
Funny how originally all these pro-AI art people were anti-copyright law but I can see them sometime soon lobbying for MORE restrictive copyright law (granting it in a larger pool or circumstances hence making more things copyrighted) so that they can overcome this.
Ok, but using an AI created image as a basis (example) for a slightly-different-and-derivative work of art must be protected by copyright law. There is plenty of legal precedence for this kind of work.
I had to make an account just to come in here to tell you you are not correct.
Copyright is held automatically by the person who produces the work unless otherwise specified in a contract or agreement. I am a commission artist, and I retain all copyright to all of my work, per my terms of service, unless otherwise sold via agreement, and I charge extra for copyright.
Someone can't commission me to paint something, and then turn around and sell prints of it themselves. I still did the work, and they need my approval before they can legally make money off of it.
The reason why AI art is so devisive right now is because thousands of artists have had their work scraped and the AI trained on their work without their permission or compensation, and unlike a human who looks at other art for reference or inspiration, an AI can look at a dataset and pump out thousands of similar images in a very tiny amount of time.
If the AI author or the user generating the image owns copyright, you can kiss artists selling their own work goodbye. The space will be flooded with "AI artists" who create work at a far faster pace than anything a real artist can create, for a fraction of the cost. The people who train AI on this art are profiteering off of the hard work of the people who spent years of their lives developing a skill.
This feels like a bit of a naive interpretation of the situation. At its core — regardless of specific lawsuits, etc — the questions here are (1) should copyright laws be adapted to the new reality of generative AI, (2) should artists be able to control how their work is used given generative AI is a reality, and (3) do we as a society think people should be able to make a living as artists, and what are the implications of that either way when it comes to AI models and their use.
Until this point, an artist who has developed their own personal, recognizable style, could be somewhat confident that it is difficult for someone else to generate a new piece of art exactly mimicking their style. That is to say, it was never impossible — there have certainly always been other artists out there who are capable of taking artwork and creative something new in that style — but there were some barriers to getting there, including that those artists aren’t easily and instantaneously accessible to every human being on the planet, that they generally don’t work for free, and that they would need some time to produce their work. The combination of these factors resulted in a system wherein, for the most part, if you really wanted to create something in the style of a specific artist, you would need to commission them, thereby supporting their ability to live and continue creating art. And/or they sold merchandise with their art, or collections, etc.
Now, on the other hand, it is incredibly easy to go to an image generator and have it generate art in the style of a specific (sufficiently well-established) artist quickly, easily, and freely. The barriers have, overnight, gone from being reasonably protective to pretty much nonexistent. As a result, artists are asking themselves how they can continue to live and create art. This is something a sufficiently well-established professional artist used to be able to do before generative AI came into the picture, because other than the odd copycat (which again took time and effort and an actual human with the right ability), they were the only ones who could produce images in their own styles, and this ability was thus a valuable resource that people paid for. If anyone can now produce identical images independently and for free, then this ability may no longer be a resource other people will pay for.
Part of what these court cases are trying to determine is exactly whether any copyright does apply to generated images. You wrote that “publishing, that is a different story, and we already have laws offering such protections both with respect to illegally-produced or copyrighted content”, but those laws are exactly what’s being tested here: artists (and organizations like Getty) are seeing what they claim are AI-generated copies of their copyrighted works in use out in the world (so these have been “published” by some definition — they are not only being printed out and hung in people’s garages for them and their friends to look at in private), and are suing to stop that.
But aside from that, I think there is a real philosophical discussion here. If you’ve trained as an artist your entire life, have worked hard to develop a unique style, and are one of the relatively few artists who have been successful doing so — should a company be able to wait until you became popular, then just take all of your work, and use it to train a model that can produce works exactly in your style easily and without any effort, which it can then provide to people freely or for a subscription?
This also isn’t as much about the output, as about how the output was obtained. If the model did not actually ingest your images, but someone wrote a prompt that involved a super-detailed description of what made your style unique, going into color palettes, line thicknesses, art styles, influences, etc etc, and you would have to get all of that right in order to generate something that looked like your art, then I think most folks would be generally ok with that. But when (1) your prompt can just be “give me art that looks like soulofmischief made it” and it’ll give you just that, and (2) you know that your art was used to train the model in order for it to be able to do that, then there is a question of whether fair use laws should be adjusted to prohibit this behavior and protect your ability to live off of your work.
I also think that regardless of the outcome of these lawsuits, no one is really coming for your own models and hour ability to tinker in your garage. It may not be legal today to duplicate a copyrighted image and hang it in your office, but no one will ever know (or care enough to do nothing about it) if you do. Similarly, even if this use becomes copyrighted, nothing will practically stop you from building your own large model that includes any copyrighted images you want, for your own personal use, in your own garage. But if you then turn around and try to profit off of that model, or if you want someone else to produce a model (thus stepping more into the publishing realm) that’s where a line may be drawn. I personally think that’d be fair.
Finally, zooming all the way out, I believe that it should be possible to make a living as an artist, and I think when we have discussions like these, we should keep reminding ourselves to think about how our technical or legal arguments affect that outcome.
>it could be argued that it's a unique derivative work
Creating a derivative work of a copyrighted image requires permission from the copyright holder (i.e., a license) which many of these services do not have. So the real question is whether AI-generated "art" counts as a derivative work of the inputs, and we just don't know yet.
>b) often has explicit licensing and therefore intent on its usage
It doesn't matter. In the absence of a license, the default is "you can't use this." It's not "do whatever you want with it." Licenses grant (limited) permission to use; without one you have no permission (except fair use, etc. which are very specifically defined.)
Put another way, if I create a Rube Goldberg painting machine, what copyright law applies? Why is that different than if I create/train/prompt an AI to do the work? One is physical, one is digital, but both require a human to create and initiate. And in both cases, every decision that human makes is made based on their life's experiences. No art exists in a vacuum. All art is derivative.
A human illustrator can also copy existing works. As a result they are not criminalized for making other non-copies. The output of an AI needs to be considered independently of its input. Further, the folly of copyright ought to be also considered, since no work -- whether solely human in origin (such as speech, unaccompanied song, dance etc.) or built with technological prosthesis/instrumentality -- is ever made in a cultural vacuum. All art is interdependent. Copyright exists to allow art (in the general sense) to be compensated for. But copyright has grown into a voracious entitlement for deeply monied interests, and has long intruded upon the commons and fair use.
That’s one case, not a ruling about all AI generated art. It won’t be the same for every image involving AI in some way. What if you use AI to fill in a portion of an image, as with Adobe’s content aware fill? What if you use a series of SD steps but with a human selecting outputs and feeding them back in as inputs to get something else the AI could not have come up with on its own? The copyright conversation is only just beginning.
your mouse doesnt make decisions for you. ML based art does, which is why it lacks human authorship and you shouldn't be able to copyright it.
If you hand painted something in photoshop 100% you can copyright it. It has human authorship. If its mostly AI based fill, those elements can't be copyrighted. if Its 100% an ai result, its public domain.
> n those cases, it seems like not such a leap to say that the AI has obviously seen that artist’s work and that the output is a derivative work.
"Copying" a style is not a derivative work:
> Why isn't style protected by copyright? Well for one thing, there's some case law telling us it isn't. In Steinberg v. Columbia Pictures, the court stated that style is merely one ingredient of expression and for there to be infringement, there has to be substantial similarity between the original work and the new, purportedly infringing, work. In Dave Grossman Designs v. Bortin, the court said that:
> "The law of copyright is clear that only specific expressions of an idea may be copyrighted, that other parties may copy that idea, but that other parties may not copy that specific expression of the idea or portions thereof. For example, Picasso may be entitled to a copyright on his portrait of three women painted in his Cubist motif. Any artist, however, may paint a picture of any subject in the Cubist motif, including a portrait of three women, and not violate Picasso's copyright so long as the second artist does not substantially copy Picasso's specific expression of his idea."
"it encourages commercial projects to hire human artists so that they can gain the protection of copyright"
How is this relevant to AI copyright?
If AI art is copyrightable, they'd still need someone to generate the AI art. That person is an 'artist' in the legal sense, regardless if they can draw or not.
If AI art is not copyrightable, they can still hire a non-artist (fully outsourcable), to do some minor post-editing of the AI art, and copyright it.
This is the crux of the issue. If courts find that AI draws like a human (at least for the purposes of copyright law), then you can only claim it infringed upon your work if it actually looks like your work was de-facto "traced"/copied by the AI and the output image only has small imperfections that don't qualify for fair use.
You can argue that artists given an implicit license for people to copy art into their own brains while viewing it. The same way websites give an implicit license for a browser to copy the page to display it. That does not necessarily mean they given an implicit license for someone else to copy the work as part of AI training.
Separate to that is the issue of producing new works that are too similar to existing works you've seen. If you do that as a human then you're liable for copyright infringement.
Because in the prompting case, the artist you commissioned isn't a human. Existing case law says you can't have non-humans holding copyright, because only humans can be creative, and copyright requires creativity. In the case of works for hire, the human artist is contributing creativity so the commissioner can steal[0] it for themselves. But with AI art, there's no creativity to steal, so there's no copyright.
[0] My editorialization. The rationale of what is and isn't a work-for-hire was not some principled decision but just a list of whoever wasn't in the room when the last major copyright law was drafted.
Exactly. When someone rips off someone else's art a court can usually determine that the copyright was infringed. But when an artist uses an AI model trained on other people's works how can that be proven even in a courtroom?
Your prompt for the AI image generation is copyrightable.
The output is not.
The photo you take involved choices of composition and timing and equipment choice.
Just because you don't feel you put in a lot of consideration does not mean at a fundamental level that you still put in creative choices that give the resulting product copyright protection.
But if you took that photo and put it into software which made a derivative image without human creativity, then while the original image would be copyrightable the resulting derivative output would not.
The ideal path forward in copyright would be no infringement in use of materials for training and no protection in AI output with infringement possible against output too close/derivative of protected images.
It's not infringement if you learned to draw tracing Mickey Mouse, your Gerry Gerbil cartoons are fine, but if you draw Mickey Mouse and distribute it, you'll hear from Disney's lawyers.
AI should be the same with the exception that the Gerry Gerbil cartoons would not be copyrightable.
If I ask an AI for a picture, there is no artist 'bob' to be assigned ownership under copyright law and therefor it's not copyrightable under existing law.
Funny how originally all these pro-AI art people were anti-copyright law but I can see them sometime soon lobbying for MORE restrictive copyright law (granting it in a larger pool or circumstances hence making more things copyrighted) so that they can overcome this.
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