Artist is Suing Copyright Office For Refusing to Register His AI Image
petapixel.com
An artist who infamously duped an art contest with an AI image is suing the U.S. Copyright Office over its refusal to register the image’s copyright.
In the lawsuit, Jason M. Allen asks a Colorado federal court to reverse the Copyright Office’s decision on his artwork Theatre D’opera Spatialbecause it was an expression of his creativity.
Reuters says the Copyright Office refused to comment on the case while Allen in a statement complains that the office’s decision “put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work.”
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It has to be fixed in a tangible medium.
In this case they’re not “fixing” their words and the final art is the created expression. Yet in this case their created expression wasn’t created by them but the program.
In this case their combination is the palette and paint but the program “interpreted” and so fixed it.
For example you can’t copyright a simple and common saying. Nor something factual like a phone book. Likewise you can’t copyright recipes. There has to be a “creative” component by a human. And courts have ruled that AI generated content doesn’t meet that threshold.
That’s not to say that creating the right prompt isn’t an “art” (as in skill and technique) and there is a lot of work in getting them to work right. Likewise there’s a lot of work in compiling recipes, organizing them, etc. but even then only the “design” part of the arrangement of the facts, and excluding the factual content, can be copyrighted.
Using stuff like controlnet to manually influence how images are shaped by the ML engine might count, there's some great examples here (involving custom Qr codes)
https://medium.com/@ssmaameri/ai-generated-qr-codes-with-controlnet-huggingface-and-google-colab-a99ffeee2210
In general these art pieces are not created simply with words. Users control the output using ControlNet which allows drawing on the image to force regeneration only to specific areas. It seems that if your only logic around it being non-copyrightable is due to them using words and that the program “does it all”, but that’s just not how it works.
I’m not in favor of copyrights for stuff like this, but you have a terrible misunderstanding of how these art pieces are created and it’s affecting your argument negatively.
You cannot copyright a recipe, but you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.
Can a person who works with wood and creates something unique from the wood then copyright their design crafted from the wood? What makes it art and not just glue, iron nails, and dead trees? This is what needs to be defined with AI. Right now everyone is so happy to jump on the anti-AI bandwagon that they blind themselves to issues regarding the law by claiming the art is lawless at best and stolen at worst, when in fact it is simply a new tool and a new medium.
Did authors who used typewriters rail against the new word processor? What about the editor that checked for grammar and spelling? Did they try to burn down spell and grammar checks in microsoft word? Is the art any less art if it has been created with a tool that allows for more ease than has been available in the past? Should we boycott the bakers that do not mill their own wheat? Or does the sourdough bread belong to the wild yeast cultures, and so owed recompense for all we have taken from it?
The argument can be made until the universe burns out, or we can accept that art is made by sentient life, and any tool used in the production of it cannot be considered an owner of that art, and if the only sentient lifeform involved in the creation of that art wishes to claim it as their own, then they should have the right to protections for their work.
No, you can neither copyright a recipe nor the food or drink it produces.
Food and drink is only protected by trademark law. You are free to make a burger that tastes exactly like a Big Mac, you simply can't call it a Big Mac.
And you can take a photo of some natural rock formations on black and white film stock, but you can't take Ansel Adam's photo of natural rock formations on black and white film stock. This is what the artist is suing for. He wants to claim ownership of his work, which I believe falls under copyright law, just like Ansel Adam's photos.
Ansel Adams has a copyright because of the creative control he had over his photos, such as in lighting, perspective and framing.
Artists generally cannot copyright AI output because they do not have a comparable degree of creative control. Giving prompts to an AI is not sufficient.
Ok, I controlled the lighting, perspective and framing. Can I copyright now?
If this is an actual photograph, then you can copyright the lighting, perspective, and framing of the photo. Anyone can make an image with the same model though.
If this is AI generated and you directed the AI to change the lighting and perspective, then no you still can't copyright any of it. Giving direction is not the same as having control.
Ok, lets do it with some of my actual work, then. One of these is the original photo I took, another is black and white, and the other has had some color added. When I took the original photo, I controlled everything about it. However, the edits were done in lightroom, where I asked the computer to change the color and to desaturate. I didn't go in, pixel by pixel, and change things. I didn't shoot on different film. I used a tool. Do I still own those photos? It seems like we are struggling over what is and isn't a tool, and whether tool assisted art is still art.
In your edited photos, a judge can point to any part of the photo and ask, "In this particular part of the photo, why is there this particular hue?" And you can answer, "Because I desaturated it or I adjusted the tone curve or I snapped the photo when I saw that hue in the viewfinder". There is no possibility that 100% desaturation can result in any color other than grayscale. There is no possibility that a desaturation slider will sharpen the image instead of desaturating it. You know what will happen every time you make an edit. That's creative control.
In an AI generated photo, at some point the prompter will answer "Because that's what the AI produced after my prompt, and I accepted the result". In other words, in some parts of the image the prompter could not predict what the result of a prompt would be, but they approved of the result after the fact. It's entirely possible that a prompter could get unexpected results from their prompt. That's direction, not creative control.
Ok, but can you know how every bristle of a paintbrush will flow over a canvas? Can I know every hair on the head of the model and how they will be in the finished photo? Control is relative, and cannot be used as a measurement of art.
When someone throws paint at a canvas, is it still able to be copyrighted by them? They had no control over the paint as it landed, all they did was throw it. What if they didn't even throw it? What if it were attached to a line and swung over the canvas? What if money-green paint were launched from a gun? Now the art becomes the message of the piece instead of the medium. Is it still copyrightable?
You're basically arguing that you can't copyright every hair on the head of your model. And you're probably right!
Imagine I published a photo that was exactly like yours, except I edited the model's hair color. Even though my image is not identical to yours, it has the same model, pose, lighting, framing, etc. These were all things that you intentionally controlled. You could argue on that basis that I violated your copyright.
Now imagine I published a photo with a different model, different lighting, different framing, different background, different everything except, by chance, the hair on my model's cheek matched the hair on yours. If you admit that you didn't even try to control that, you would have a much harder time proving I violated your copyright.
Likewise, suppose my painting of a flower vase contained a drop of paint splatter that by chance matched the fine texture of a drop on a Pollock painting. Pretty unlikely that would be a copyright violation.
To the extent that an artist gives up control of their work, they lose the ability to copyright it. The extreme case is the monkey selfie, where the artist (initially) admitted they had no control over the output and thus no basis for copyright.
No, I'm arguing counter to your point about "control" being the lynchpin to copyrighting art. Control has nothing to do with it. What makes art is intent. I can throw paint at a wall all day, but if I'm only doing it because I don't like the wall, then it isn't art (though I accept that someone else may see it as art, but that's a different story...). When I have intent--when I throw the paint with a purpose to create something that is a reflection of some idea I have--then it becomes art. The same goes for AI generated art. I can type words into Midjourney and pictures come out. These pictures can be "artistic" but they are meaningless if there was no intent behind them. I, like the artist attempting to copyright their AI art, have created AI art with intent and purpose. We have created something of our own will as a reflection of an idea. How much control we have over the product is unimportant, what is important is that the final piece is a representation of our desire to convey something to you in a visual medium.
You may not like it, but legally copyright is not based on intent. That's why if a couple hired you with the intent to shoot their wedding then they do not have copyright over your work. As a photographer you control the photos and thus retain copyright even when the intent of your photos is dictated by your employer.
The functional relationship between the employer and the photographer is basically the same as the relationship between the AI user and the AI.
I’m not Anti AI. I have fun making stuff with it.
But the copyright laws as they are don’t apply. And if they did it would open a can of worms legally.
The recipe can’t be copyrighted. The cake produced can’t be copyrighted. But the packaging or style of a cake with your brand could be trademarked which is a different legal ball of wax entirely
What is the limit to the number of words that can be copyrighted?
For sale,
baby shoes,
never worn.
Can I claim that as my own? Is six words the lowest? Four? Where is the line? What makes it art vs. instruction? If Hemmingway had said those words to his publicist and asked that they be published instead of writing them himself, would he still own them?
And therein lies the rub. When it comes to copyright every infringement case has to be adjudicated by a judge (assuming they have filed a copyright)
I can definitely recommend Leonard French’s (a copyright lawyer) channel Lawful Masses on YouTube and Twitch for a more in-depth breakdown of copyright cases. How it works, the rights that copyright holders have, etc.
Hard disks are pretty tangible.
But if they are not as you suggest, does this mean all digital photography is not copyright able?
So many arguments as to why this shouldn’t be subject to copyright seem to fail simple questions of logic.
If the output of ML isn’t copyright able, then the inputs should not be subject to copyright either. The whole system is broken and only serves to enrich the few at the expense of the many. It doesn’t protect the small time artists, only the exceptionally wealthy ones who earn more than the typical worker will make in many lifetimes.
Here’s more if you’d like to read about it.
https://www.copyright.gov/engage/visual-artists/
I remember when the DMCA was introduced and all the various issues arising from what and isn’t copyrightable when it comes to digital vs physical copies, etc.
Again I’d like to recommend Leonard French (Lawful Masse) on YouTube and Twitch for a copyright lawyers breakdown of these kinds of issues.