US rejects AI copyright for famous state fair-winning Midjourney art
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arstechnica.com
Controversial AI art piece from 2022 lacks human authorship required for registration.
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If those people have ever tried actually using image generation software they will know that there is significant human authorship required to make something that isn't remotely dogshit. The most important skill in visual art is not how to draw something but knowing what to draw.
Then why does all AI need to harvest the work of millions of artists in order to create one mediocre painting? Millions upon millions of hours of blood sweat and tears is hidden behind that algorithm. Thousands of people starting to draw when they are 5 and never stopping in order to get as good as they are.
All big AI services refuse to disclose the training set they use and those that we know anything about absolutely uses copyrighted material from artist that didn't consent to be part of the training set.
This is what fuels my contempt for AI. People that uses literal billions of dollars of stolen time and talent and then pretend that actually having ideas is the important bit.
I mean, I agree that the developers of these AI tools need to be made to be more ethical in how they use stuff for training, but it is worth noting that that's kind of also how humans learn. Every human artist learns, in part, by absorbing the wealth of prior art that they experience. Copying existing pieces is even a common way to practice.
Yeah, that shrug you did about how it would be nice if AI didn't steal art is part of the problem. Shrugging and saying joink doesn't work when you want to copyright stuff.
Human learns by assimilating other people work and working it into their own style, yes. That means that the AI is the human in this and the AI owns the artistic works. Since AI does not yet have the right to own copyrights, any works produced by that AI is not copyrightable.
That is if you accept that AI and humans learn art in the same way. I don't personally think that is analogous but it doesn't matter for this discussion.
There's a reason I said "they should be made to be more ethical" and not just "they should be more ethical". I know that they aren't going to do it themselves and I'll support well-written regulations on them.
Isn't it what almost your entire comment was about?
The argument was basically "that is how humans learn too". I accepted that analogy because it doesn't change my conclusion that AI can't be copyrighted. Had the discussion been about something else I wouldn't have accepted that argument.
To play devil's advocate: What about artists that use assistants, is using AI not the same as using an assistant?
The difference is a human artist can then make new unique art and contribute to the craft so it can advance and they can make a living off it. AI made art isn’t unique, it’s a collage of other art. To get art from AI you have to feed it prompts of things it’s seen before. So when AI is used for art it takes jobs from artists and prevents the craft from advancing.
My point is that this description literally applies just as much to humans. Humans are also trained on vast quantities of things they've seen before and meanings associated with them.
This is genuinely a misunderstanding of how these programs work.
Because the only art anyone has ever done is when someone else paid them for it? There are a lot of art forms that generally aren't commercially viable, and it's very odd to insist that commercial viability is what advances an art form.
I do actually get regularly paid for a kind of work that is threatened by these things (although in my case it's LLMs, not images). For the time being I can out-perform ChatGPT and the like, but I don't expect that that will last forever. Either I'll end up incorporating it or I'll need to find something else to do. But I'm not going to stop doing my hobby versions of it.
Technology kills jobs all the time. We don't have many human calculators these days. If the work has value beyond the financial, people will keep doing it.
Human brains don’t have perfect recollection. Every time we retell a story or remember a memory or picture an image in our head it is distorted with our own imperfections.
When I prompt an AI to create an image it samples the images it learned from with perfect recollection.
AI does not learn the same way humans do.
This is incorrect actually. The models these AIs run from by definition have imperfect recall otherwise they would be ENORMOUS. No, that's actually exactly the opposite of how these work.
They train a statistically weighted model to predict outputs based on inputs. It has no actual image data stored internally, it can't.
This is incorrect actually. The models these AIs run from by definition have perfect recall and that is why they require ENORMOUS resources to run and why ChatGPT became less effective when the resources it was allocated were reduced.
-ChatGPT
No, they take exponentially increasing resources as a consequence of having imperfect recall. Smaller models have "worse" recall. They've been trained with smaller datasets (or pruned more).
As you increase the size of the model (number of "neurons" that can be weighted) you increase the ability of that model to retain and use information. But that information isn't retained in the same form as it was input. A model trained on the English language (an LLM, like ChatGPT) does not know every possible word, nor does it actually know ANY words.
All ChatGPT knows is what characters are statistically likely to go after another in a long sequence. With enough neurons and layers combined with large amounts of processing power and time for training, this results in a weighted model which is many orders of magnitude smaller than the dataset it was trained on.
Since the model weighting itself is smaller than the input dataset, it is literally impossible for the model to have perfect recall of the input dataset. So by definition, these models have imperfect recall.
In other words they require exponentially more input because the AI doesn’t know what it is looking at.
It uses its perfect recollection of that input to create a ‘model’ of what a face should look like and stores that model like a collage of all the samples and then uses that to reproduce a face.
It’s perfect recollection with an extra step.
Well, what you described is simply not a perfect recollection. It is many small tidbits of information that combined together can make a larger output.
That's exactly how our brains work too
If our brains worked exactly the same as AI programming then AI wouldn’t be needed because it would be no different than how we are doing things without AI.
I feel like you keep misrepresenting what I'm saying. Nowhere did I say that our brains work completely and exactly the same as AI. However, we do learn in much the same way. By amortizing small amounts of information and drawing connections between them
I'm pretty sure that the way they constantly fuck up hands is a solid demonstration that these AI tools do not have a perfect recollection
The reason they fuck up hands is because hands are usually moving during pictures and have many different configurations compared to any other body part.
So when these image AIs refer back to all the pictures of hands they’ve been fed and use them to create an ‘average approximation’ of what a hand looks like they include the motion blur from some of their samples, a middle finger sticking up from another sample or extra fingers from the sample pictures of people holding hands etc and mismatch them together even when it doesn’t fit in the picture being created.
The AI doesn’t know what a hand is. It is just mixing together samples from its perfect recollection.
What? No
How many pictures do you see online where the hands are in motion, or even blurred?
Hands are usually behind objects when they hold something and can indeed have tons of variations and configurations. Even human artists fuck up all the time or just not draw them at all.
AI don't combine samples. If they did they wouldn't be able to generate new pictures of whatever subject you want in a specific style you want and then have multiple variations of that picture.
It isn't a copy and paste, it is interpreting the drawing and modifying it based upon the prompt.
In which case the machine would get the copyright (which legally they can't now), not the prompter.
Copyright just isn't compatible with AI, we need to abolish it.
If a picture gets generated, who is the owner? The one writing the prompt? The AI that generated it? The researchers that created the AI? The artist on which the picture is based?
How about none of them? It is a picture, a piece of information. It doesn't need an owner.
Can we get UBI before we start abolishing people's income though?
I agree. Well, that is assuming there's no human editing of the results of the AI tool afterwards. There was heaps of it in the piece referenced in the article, and there usually is if you want to get something actually good. The piece referenced was entered in to a photomanipulation and editing category too, which seems like it's very much in keeping with the spirit of the competition. But the reason I said that was because the comment I was replying to wasn't about who has the copyright of the tool's output, it was about the value of the output and tools in general
The tools are valuable for sure.
Where the law is on copyright it looks like we're figuring out. For now I'm glad to see rulings like this as it will, hopefully, take some of the wind out of Hollywood studios and aide union negotiations.
If there was, then the artist should have discussed those heaps of human editing that went into the creation of this piece of art, and he would have been granted a copyright.
The fact that he refused to disclose what - if anything - was done after the AI spit out the result is what resulted in him not being granted copyright.
He did? This article mentions it only briefly, but he talked about it more when it was first getting attention for winning the competition. Is this something he did in the court case that you've read elsewhere?
But also, if you used Midjourney at the time that the image was made, you'll know that you did not get an image like that straight out of it
This wasn't a court case.
This was a copyright application.
The Copyright Office asked him to provide them with an unedited version of the image generated by Midjourney in order to determine how much (human) work went into the final version.
Allen refused to provide them with an unedited version, so the Copyright Office had no way to verify how much or how little work was actually done by the artist compared to work that was done by the AI, so they had to assume that the vast majority of the work was done without any human artistic contribution.
They were essentially forced to reject his copyright application because he refused to provide evidence that he actually did any kind of creative artistic work.
What? Humans don't learn to paint by looking at paintings, most people learn by just painting. Humans can also draw art without having ever seen any. AI on the other hand can only draw from other people's works, it has no creativity of its own.
It is funny how that "one mediocre painting" won the award while the human art did not.
All those artists did the same thing, they're also only able to pursue art because the work of so many people before has made a world in which we're so surrounded by luxury that they don't need to work the fields just to survive.
As the famous meme so rightly states, we live in a society. I get that a lot of modern artists don't want to help build a better society for all because they want to protect their privileged position in capitalism but that's not really an option, you live by the sword of capitalism you die by the sword of capitalism.
Artists. Famously part of the ruling class.
You can have a privileged position in capitalism without being the ruling class, beside we're not talking about all the artists because a huge amount do art because they love creativity, expression and visual beauty - the ones who wage this absurd battle against emerging technology are either in a privileged position or who envision themselves in that privileged position in the future.
If I took a few hours to make an impressive AI generated price of art, that's still %0.0001 the amount of time an actual a real artist would've spent developing the skill and then taking the time to make the peice. I get to skip all that because AI stole the real artists' works.
What about photographers?
I don't think "amount of work" is a good measurement for copyright, if you scribble something in 2 seconds on a piece of paper you still own the copyright, even if it's not a great piece of art.
I'm pretty specifically trying to bring to mind the time it takes to hone the skill. Photography is similar in that it takes many many hours to get to the point where you can produce a good work of art.
If an artist (or photographer) spends a couple hours on a peice, that's not the actual amount of time needed. It takes years to reach the point where they can make art in a few hours. That's what people are upset about, that's why nobody cares about "it took me hours to generate a good peice!", because it takes an artist 10,000 hours.
What AI art is doing is distilling that 10,000 hours (per artist) into a training set of 99% stolen works to allow someone with zero skill to produce a work of art in a few hours.
What's most problematic isn't who the copyright of the AI generated age belongs to, it's that artists who own their own works are having it stolen to be used in a commercial product. Go to any AI image generator, and you'll see "premium" options you can pay for. That product, that option to pay, only exists on the backs of artists who did not give licensing for their works, and did not get paid to provide the training data.
People have made millions off of photographs despite having zero training and only casually snapping the photo. You can get lucky, or the subject of your photo might be especially interesting or rare (such as from a newsworthy event).
I think we need something more nuanced than 'effort input'
Photographers must have downvoted you. You don't have to be skilled to take a really good photo. You do have to be skilled to it regularly, though.
The law is about human expression, not human work. That which a human expressed (with creative height) is protected, all else is not
So if I tell someone else to draw something, who gets the copyright?
Depends on your agreement.
I think by default if there's no contract saying otherwise, the copyright stays with the original artist.
I would argue that the artist produces the copyright and transfers it to you. If the artist isn't human and cant produce copyrights then it cant sell it to you. A lot of argumentation here is that we should treat AI like we treat a human artist. That is an insane line to go down because that would make any AI work effectively slavery.
Hahaha, hahaha, no. That is absolutely NOT the default arrangement. Unless otherwise negotiated in the contract, the artist retains the copyright for the produced work and is free to use it as they please, including putting it in their portfolio, making further edits to the work, reusing it for other purposes, etc. The commissioner gets a copy of the finished product, but by default has few rights to use it themselves. Technically, I've personally infringed an artist's copyright by cropping a work I commissioned from them to use as an icon. However, the vast majority of artists don't typw enforce this aspect of their IP rights, due to a lack of resources and also because it would shred their reputation and kill their business.
Explicit transfer/licensure of copyright can be negotiated, but the most artists charge an extremely hefty fee for transferring the full copyright, often double or triple the price of the work itself. Most individual commissioners don't bother as a result, but commercial organizations looking to reuse the commissioned work must negotiate a license for the work in order to avoid a nasty infringement lawsuit.
I don't know where the "Hahaha, hahaha, no" comes in. Everything I said is supported by what you said. What part of my comment isn't true?
The way your response was worded came across as saying that the default arrangement is the commissioner receiving the copyright for the art unless otherwise specified, not the artist. My apologies if I misinterpreted your post.
If someone is doing work for you, you get the copyright. That's how it always worked
This isnt always the case. Tattoos for example, are commissioned and paid for but the actual copyright often resides with the artist not the person that paid for the work.
Yes, the artist must agree that copyright transfer is part of the agreement. By default ownership is with the artist.
That's only with the artist's agreement though isn't it? Usually because you're paying them. In this case the artist isn't a person so can't grant you the copyright (I think)
Yes, in practice this would be a contract with the artist deciding whether the copyright is transferred or not.
Because by default, if you commission someone to draw something for you, they keep the copyright.
Then it's public domain according to cases so far.
Yeah it's called work for hire, if you're employed to do something then you have to agree who gets the copyright before you do the work.
AI art isn't copyrightable because it's the output of a mathematical equation and most sane places decided your can't copyright math - imagine if Microsoft had been able to lock down percentages and no one else was allowed to use them, or of if every bit of electronics had to use sub-optimal voltage values because apple were sitting on a patent blocking people from using the most efficient options.
Copyright was only really invented so the rich can block people from expressing themselves and allow them to manipulate society, it so goes back to when queen Elizabeth decided that her friend should be the only person allowed to make money from salt, a commodity we'd been using for tens of thousands of years at that point. It's all rent seeking and attacks on the poor.
Look, if I train a monkey to draw art, no matter how good my instructions or the resulting art is, I don't own that art, the monkey does.
As non-human animals cannot copyright their works, it then thusly defaults to the public domain.
The same applies to AI. You train it to make the art you want, but you're not the one making the art, the AI is. There's no human element in the creation itself, just like with the monkey.
You can edit or make changes as you like to the art, and you own those, but you don't own the art because the monkey/AI drew it.
Does my camera own my art, and not me?
No, because there's a fundemental difference between a tool that functions directly as a consequence of what you do, and an independent thing that acts based on your instruction.
When you take a photo, you have a direct hand in making it - when you direct an AI to make art, it is the one making the art, you just choose what it makes.
It's as silly as asking if your paintbrush owns your art as a response to being told that you can't claim copyright over art you don't own.
you control the seed, control the prompt — you can get the "AI" to produce the very same image if you want. so yes, you do have
That's like saying you can control the sun for a photo because you can predict where it will be at a given time.
The fact that an AI can be deterministic, in that the same "seeds" will generate the same images, doesn't at all invalidate my point that it is still the one interpreting the "seeds" and doing the actual image generation.
You're the one gatekeeping work. Don't make a dumb argument against your own dumb argument.
If the argument against AI is that it's too little work, then Photography neesds to step it's fucking game up.
If the argument against AI is that irrelevant companies get to profit off of others' work, then say that. Don't make stupid arguments.
Edit: Do I have direct control of the LLMs that Samsung uses to sharpen the photos on my phone? Do I not still own them? You're yelling at clouds.
I think it's very hard to make the argument that photography is "real art" AND that the output of a diffusion model is never.
I think you're getting things mixed up here...
I'm not arguing the output of an AI cannot ever be art, there are beautiful AI works out there, just as there are beautiful photos out there.
What I am arguing is you can't claim it to be your art.
Prompting isn't enough of a creative element to take ownership over the art an AI outputs, especially if you don't own the training data used for the AI. As such, you cannot (nor should you be able to) claim copyright over it.
If an artist takes requests and happens to pick your's, you don't automatically own the final piece just because they happened to use your prompt. The artist owns it, unless you pay them for that right.
In the case of AI art, the work would become public domain, since AI cannot copyright their works (much like non-human animals).
To what degree do you consider AI involvement to be the deal-breaker. My phone uses something arbitrarily akin to generative AI to sharpen photos. If I take a photo with my phone of something novel, should I be able to copywrite that photo?
If I use an AI generated image and spend 24 hours manually tweaking and modifying it, do I have a right to copywrite?
If I use an LLM to synthesize an idea that I then use to organically create art, is it lesser art?
It all seems so arbitrary at this point. It's like a typist in 2005 arguing that digital word processors shouldn't be used to create copywritable art, as it takes significantly less work.
In one sentence, when you're editing the AI's work rather than the AI editing your's, you can't claim the original work as your's.
This being an example if the former... The AI is sharpening your photo that you took.
Assuming it was transformative enough, I'm sure you could copyright your derivative work, but you couldn't then directly copyright what the AI generated.
No, because like an artist taking requests, the AI is providing the prompt. You'd be the one drawing the art piece, putting in the majority of the creative effort.
Excuse my French, but how in the flying fuck is that the same thing?
Whether you write a document on a typewriter or keyboard, you're still the one directly deciding what words go on that page, and in what order. Every creative decision it is possible to make, you make.
When an AI writes for you based on prompts, you decide almost none of that. You give it a synopsis and it writes the whole script, essay, whatever for you.
There's a huge difference between those things! How is it so hard to grasp that?
What I said was hyperbole, but it isn't invalid. You're claiming direct control over an independent process simply because it happens to be deterministic for any unique set of prompts.
But honestly, my arguement isn't that complicated...
When you take a photo, you're the one taking the photo. You physically go to the location, you frame the shot, you're the one who has to make sure the lighting is right, even that the camera is set properly.
When you draw a art, whether paint or digital, you're the one doing each and every brushstroke, deciding each and every detail as you draw.
There's a clear human creative element not just deciding what to photograph/draw, but in how every part of it is done.
There's a reason most people hire a photographer for special occasions like weddings, and not just Bob down the road with his IPhone - good photography takes skill.
Whereas for AI art, all you're doing is providing instruction to the AI, that then goes on to make all these decisions. It connects the dots between your prompts, it decides where everything goes, what brushstrokes to make. It draws the art, it generates the image.
That is a valid argument, and one I actually have made before. If you don't own your training data, then how can you possibly claim ownership of anything that comes out of the AI, since it's not just inspired by that data, it is working/pulling directly from that data. But, that is not the argument I'm making.
Now that is a stupid arguement. Having an AI sharpen an image you already took and own is not the same as having it generate the entire image for you by instruction and then claiming that as your own.
You could transform that AI work into something you own and claim copyright over that transformative work, but the original work the AI made isn't your's to claim.
By your definition, you could copyright a screenshot from Google streetview without doing anything transformative to it because you prompted Google where to take you, and decided where to screenshot.
Does Photoshop or any digital art not count? I don't have to have the skill to draw a perfect circle?
So we should artificially handicap the art at the expense of the lesser abled?
Same as clicking a button on a camera at something that just happens to be beautiful. Does it matter if someone next to me is using the same ISO or exposure?
I don't have to realize the complexity of lighting, shaders, or materials to render a scene in Unreal. I get to utilize the processes that pioneers before me discovered.
I understand the frustrations, but this seems stifling in the same way that cotton-gin-phobes, typewriter-phobes, and computer-phobes wpuld have stifled the ability of the average joe to accomplish something.
Did you read what I said or just start typing the moment you saw brushstroke?
"When you draw a art, whether paint or digital, you're the one doing each and every brushstroke, deciding each and every detail as you draw."
Of course digital art counts. While there are more tools for digital artists, ultimately they're still the ones drawing the art.
You could say this for literally anything gate-kept by requiring decent skill.
If you want to profit from a creative work you should have to make that work yourself. It's not difficult.
Is this meant to be your gotcha?
The fact that two people chose to photograph the same thing with the same settings doesn't actually matter in my argument because each person still made the creative decisions behind their photographs. Each one chose those settings, even if they chose the same ones.
You can have art classes full of people painting the same thing, but they're all still their own works.
It's the fact that those people did the work and made the creative decisions that matters, not the what they chose to point that creativity at.
Guess what, that's why developers have to acknowledge Epic and their engine in any games they male with it, and why they have to pay royalties to Epic (over a certain amount of sales) - because the engine was their art!
You may not need to understand the exact lighting, shaders, etc. required to render the game, but you still made the creative decision to as to where light sources would be.
Just because the engine has AI powered tools, doesn't mean the engine just makes the game for you, you have to build it. The reason you even own the game is because you made those creative decisions.
If the AI tools just made the game, you wouldn't own it because you didn't make the game, you just provided the inspiration. At best you can claim copyright over that inspiration.
The person who wrote the Witcher books doesn't own the Witcher games, CD Projekt Red does, because they made the game.
The person that wrote the Metro series doesn't own the Metro games, 4A Games does, because they made the game.
Both pay royalties to their respective inspirations, because those inspirations are the works the writers own, not the derivative works. Just in the same way the developers don't now own the works they derived their games from.
No offence, but the fact that you're making those comparisons shows you clearly do not.
You're can act like I'm out here arguing against the democratisation of art, but that's not what I'm arguing against.
If you want to use an art AI to make you some cool art, go ahead and do that.
You want to use AI art as the basis of a creation you want to make, sure.
But to claim an AI art piece as your own and to then claim copyright over it as though you made it is wrong. That is what I'm arguing against.
AI art is art, but in its raw form, it isn't anybody's to own because nobody made it, AI did.
It's actually gotten significantly easier, which makes this artist's work even more impressive. There is a very real chance they spent more time on this piece than other artists they were up against spent on theirs. I generate thousands of images a month, and sure, I can just take the first thing midjouney throws at me and be satisfied with 80% accuracy, or I can work and rework, each generation with diminishing returns, until I get to 98% accuracy and just accept that it's not capable of 100% yet.
.... you've never actually made art, have you? The sort of stuff that you enter into contests takes months to make, from the actual painting to rough sketches to reference gathering, and that's just the basics
Clicking a button a thousand times isn't really comparable
I'm not at all disagreeing with the overall sentiment here, but having given it a go, I will say AI image generation is a very tedious endeavor many times.
It's not just clicking a button. It's closer to trying to Google some very specific, but hard to find medical problem. You constantly tweak and retweak your search terms, both learning from what has been output so far and as you think of new ways to stop it from giving you crap you don't want. And each time you hit search the process takes forever, anywhere from 5 minutes to 5 hours.
I don't really feel like this constitutes skill, but it does represent a certain amount of brute force stubbornness to try to get AI image generation to do what you want.
Ok using your Google analogy - there's a reason why "librarian" is a job and "Googler" isn't. One requires years of skill and practice to interpret a request and find the right information and do all sorts of things, and the other is someone kinda bashing keys to make Google give them what they want. You wouldn't put them in remotely the same class
I drew a pony when I was 6? Does that count? Or does gatekeeping art go that far?
Maybe if you spent some of that time you spend tweaking settings on midjourney practicing art, you'd make something worthwhile and not just generated content slop. :)
Yeah, or I could continue doing what I enjoy in the way that I enjoy it, and you can fuck off with your judgemental comments.
Enjoy adding negative value to the world
You making up a To-Do list of things you'll try to accomplish today?