Copyright and why it's broken. - Tom Scott
So recently there has been a lot of debate on AI-generated art and its copyright. I've read a lot of comments recently that made me think of this video and I want to highly encourage everyone to watch it, maybe even watch it again if you already viewed it. Watch it specifically with the question "If an AI did it, would it change anything?"
Right now, AI-generated works aren't copyrightable. https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/ This means you can not copyright the works produced by AI.
I work in games so this is more seemingly relevant to me than maybe it is to you. https://techcrunch.com/2023/07/03/valve-responds-to-claims-it-has-banned-ai-generated-games-from-steam/ Steam has outright said, earlier this month, that it will not publish games on its platform without understanding if the training data has been of images that aren't public domain.
So right now, common AI is producing works that are potentially copyright-infringing works and are unable to be copyrighted themselves.
So with this information, should copyright exist, and if not, how do you encourage artists and scientists to produce works if they no longer can make a living off of it?
There are tools that are being used to attempt to detect if a piece of work is AI-generated. If those tools say something was, it's then on you to prove that you hand-created it. Even some artists are already having issues because things "look" AI-generated. The onus is on the creator to prove they have the copyright when dealing with copyright infringement.
So realistically, if you make some AI-generated content, I steal it, what do you do? How do you stop me from using your content?
They don't work. It's total bunk.
Exactly. See above. No one can (confidently) tell which is which. There's just educated guessing.
I'll go one further - they can never work. AI is trained using a system where an artist system generates art, and a gatekeeper system gives a confidence rating of how it looks human. The artist system goes through a training process until it can consistently fool the gatekeeper system. If there was a system that existed that could identify currently generated AI art, it would become the new gatekeeper system, and the artist system would only get better.
K so you ignore the entire point in my post that the onus is on the creator to prove they have copyright and just point out it's hard to figure out which content to steal?
The creator has a copyright if the relevant authorities have granted the copyright registration to them, that is all they need to prove.
Copyright isn't registered anymore, it's granted on creation in almost all jurisdictions that matter. It's not like there's documentation beyond the published work.
Even if there were tools that can dictate what is AI-generated and what not, they'd have to rely on a pattern, or on an artifact from AI-generated imagery (which, as far as I know, does not exist), and that is what can be used as proof, not the result of the tool itself being used.
The requirement of proof is on the one making the lawsuit. So if you generate AI content and I steal it, you must prove you own the copyright. With AI-generated content, you do not own the copyright. I can take it without issue.
But then, it begs the question, how would you prove it's an AI work? For all anyone knows, it's my art, I made it, it's undistinguishable from what I could make. What the court will see is, I submitted that art in the Internet, you take that, I sue you for copyright, you argue it's an AI work, and the Court will request you to prove it really is an AI work, and perhaps launching an investigation on me to see whether I really made the AI artwork.
Whose content is it? What human person holds the copyright?
In that case, if it's AI-generated content using a training set from the public domain, the content is generated initially as public domain. Adding changes to that, the changes are not public domain. So you'd have to prove that you changed it and that your work on the AI content was transformative, not derivative. But that's my point, in that case, there is no one that holds the copyright.
Whoever claims the copyright first, holds it.
The only difference is that up to now there was a very low chance of "collisions" between two humans creating the exact same piece of art at the same time, while now a piece of AI art can be fully replicated given a model, a prompt, and a seed... but in practice, there is still a very low chance of two people randomly happening to use exactly the same model, prompt, and seed... so we're back to square one: whoever claims it first, holds it.
Just remember to claim your
AI generatedhuman-made art before someone else does.Claiming it doesn't make it so.
Right now, it kind of does. Like if you took someone else's work and claimed it as your own: unless they can prove it's theirs, first one to claim it gets to own the copyright.
Unfair? You bet. There's things like SafeCreative that has been running for many years (I used to be part of a precursor to that) or even register it as an NFT to have a proof of precedence.
They can prove it's their by simply showing things like commit logs and creation process. Recreating the work in question. It's fairly hard to lie about that stuff.
First one to claim it doesn't own the copyright. They still have to argue they own the copyright through a series of details. Specially if someone claims it's ai generated.
Current copyright law doesn't require proving anything other than priority of registration/publication.
Someone can clam it's AI all they want, they would have to prove it's AI. Good luck with that (unless they have the exact model, prompt and seed).
LPT: if you want to publish a game on Steam with AI-generated assets... don't tell anyone they're AI-generated, register them to get your copyright, and present that as proof to Steam when asked.
BTW, creation progress and "commit logs", can also be faked.
Current copyright law doesn't require registration or publication in the USA.
Also, no, someone can simply take your assets, you then must sue them in court and thus you are suing them and the onus is on YOU to make your case that you hold the copyright.
If you want to test your assumption you may do so at your convenience. My guess is Steam is just going to tell you that they see your content as AI-generated and that they don't have to sell your product.
Btw, faked creation progress and commit logs are also provable in court but again, it's a risk, and if you want to make that risk. Do so. A lot of game studios aren't going to make that risk just because someone on the internet said they could probably, maybe, get away with it. Video games are multimillion-dollar projects, even for the indie ones, at this point. Betting that you can copyright your game and assets on lying and breaking the law is a risk that most won't take and most people working on that game wouldn't stand by. You might find some but the majority of talent isn't going to.
Precisely: while copyright doesn't require registration or publication to exist, it does require it to prove in court that it exists. Its abstract existence is moot by itself.
If you generate some AI art, and register or publish it as your own, that's the only proof you (currently) need in court to sue anyone who'd copy it.
Regarding Steam, my guess is they're only gonna CYA and ask you for a statement of ownership, so they can throw you under the bus if anyone comes up with proof that you used AI to generate your assets. (One such proof could be publishing a YouTube video boasting how your game uses AI generated art... don't do that).
Game studios are definitely going to publish games with AI art, they'll just "forget" to disclose it was AI generated, and if they get some whistleblower, they'll claim that their copyright is on their transformative use.
If Steam wants to retract all games like that, just wait and see how many will fall.
Some random nft greedy indie studio might publish with ai art and like about it but that's not going to be the norm.
Hey, you just stole my business model! (jk... or am I 🤔)
But seriously, just yesterday I saw a news blurb on TV about a studio making a game with AI-based characters like Einstein, Sagan, and similar, trained on all their published documents and public appearances. As far as I know, the Einstein real estate is a really greedy bunch of folks, charging through the nose for any material related to him... and I have my doubts they got a license for Sagan or the others either.
Just eager to see how that one plays out.
We'll see. Likeness rights are also a thing.