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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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.
You are conflating intent and ownership. If I shoot a wedding, I have intent for every picture (this is a fucking lie, weddings are boring, even though everyone thinks theirs is unique, I space out until the ceremony, regardless of how adorable your niece is as the flower girl). I am creating that art with intent. Whether I own it or not is per contract, and if I'm shooting a wedding, then I don't own the pictures because the contract I have with the wedding party states their complete ownership of the images after I take them. In that way, I have created art with intent, and should I desire to copyright it, then I would have to make an adjustment to the contract, though I do have a clause that with permission I will retain some photographs for advertisement, but they must be cleared with the wedding party.
How is your employer's contribution to your photo shoot fundamentally different from your contribution to an AI generated work?
The difference is I am the one with the intent in both scenarios, and the employer and AI aren't. In both cases, I control the art through my intentions. At the wedding, I have my own intent when I take a photo. That intent is the same intent that I have when I create generative art. I control the app like I would the camera. If I don't like a shot, I throw it away and try again. The AI is the tool, much like my camera. When I take a photo, just because my camera has more knobs and buttons than the web-app I make generative art with, doesn't make it any more real than the generative art. A tool is a tool, and art is art. If the web-app becomes sentient, and starts to prompt itself for art and pay for the server time with my credit hours, then we can have a talk about intent and ownership again :)
Why do you say your employer has no intent? They hired you with a particular product in mind after all. And they can do everything that you do with an AI: evaluate the results and tell you to try again.
What, specifically, do you do with an AI that an employer cannot do with a photographer?
It depends on who is creating the art. If I simply go where I am told, take exactly the pictures that I am told to take, and then hand them over to the employer, I am little more than a tripod that can work a shutter. I'm not the one with the intent, my employer is, and in that case I would be the tool (and my exes agree). In that case, my employer has effectively made the art, I have had no input in the process, and am for all intents and purposes no different than the AI. However, when I start to force my will upon the photographs, when I stage the lighting and set everything the way that I wish, then I am the one with intent, and I have created the art, and the camera is the only tool in the bag. That is how the art shifts; with the intent. Every pencil's lead will have a grain specific to it, like a fingerprint, however, that pencil has no control over the art that it creates. It is a tool. If the AI, the pencil, or the photographer start to exert their own will over the art, then it becomes their own. If they take suggestion from someone else, like an employer, then a contract and shared creative ownership can be argued, but that is something between two sentient life forms. A tool cannot own the art. I do not credit my camera for the shots I take.
This sounds like a very easy test for an employer to pass. They force their will simply by telling you what to shoot.
But I gather that you won't give them ownership quite so easily, they need to control every aspect of how you take the photos and thus reduce you to a "tripod".
You can't have two standards. Which is it? If merely exerting will is enough, then employers always own what photographers produce. If some degree of independence beyond a tripod allows the photographer to claim ownership, then AI users can't claim ownership.
Can you articulate a single principle that is valid for both employers and AI users?
I actually covered this exact point:
When two sentient life forms collaborate to create art, then they share the ownership. When an employer tells me what photographs to take, they have a part in the creative process and have placed their intent into the work. Now, 99% of the time, when an employer asks for something, and I do the work, they don't take the credit for it. They defer to me and understand that my knowledge has given their idea form, and because of my intent, their intent has been realised. However, there can be arguments made for shared ownership if they have given me input as to what they want. I'll even praise someone who has done some research beforehand and said something like, "When I was here last week, at 4pm, the sun shone through here beautifully, and we'd like to get some photos with that." That is a shared creative experience, and the intent of both parties creates the art, and so both parties have some ownership. You can also look at this through the lens of the music industry, where a performer may not write their own songs, and both the artist and the songwriter share credit for the song (though usually not equally).
Now, when I give instructions to an AI on what art I would like to see, that AI has no input in the process, it simply pulls from its dataset and applies a randomly generated seed to create the image. It exerts no will of its own, and so no intent of its own is wielded over the art, as it has neither. It is no more willful than the grain of the pencil lead.
I think your approach would not work in practice. The test is not how it plays out when people are cooperating, but what happens when there is a dispute. And if the principle is "providing some input gives ownership" then the photographer, photographer's assistant, agent, employer, and employer's ex-wife will all sue each other over ownership.
In the music industry, you need to actually perform a piece to claim performance credit or specify the verses of a song that you personally wrote to claim writing credit.