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.”
You have to be the creator of the work in order to copyright it. He didn't create the work. If the wind organized the leaves into a beautiful pattern, he couldn't copyright the leaves either.
Weirdly enough the monkey selfie probably establishes some precedence here, https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
Problem is the AI isn't a monkey with a camera, it is an algorothm licensed from a company. The guy basically outsourced the work and tried to copyright the finished product which might be fine depending on the legal agreements and if the AI Company has the rights to it.
You could copyright a photograph of that leaf pattern though, couldn’t you?
but its just a photocopy of the leaves, not the actual leaves. And to photograph something, you capture it according to your will. What will be the light situation, from which angle, at what focal length,... so many options.
This is getting weird.
If I would generate an image with an AI and then take a photo of it, I could copyright the photo, even if the underlying art is not copyrightable, just like the leaves?
So, in an hypothetical way, I could hold a copyright on the photo of the image, but not on the image itself.
So if someone would find the model, seed, inference engine and prompt they could theoretically redo the image and use it, but until then they would be unable to use my photo for it?
So I would have a copyright to it through obscurity, trying to make it unfeasible to replicate?
This does sound bananas, which - to be fair - is pretty in line with my general impression of copyright laws.
Copyright covers your creative expression.
For example, you draw a superhero named "LemmyMan" and post it online. All of your creative choices are protected. If someone made another LemmyMan with a different caption, they would be violating your copyright because you created everything about LemmyMan, not just the caption in your drawing.
Now suppose you take a photo of Mount Everest. Mount Everest is not your creation, but the choices of lighting, foreground, and perspective are. Someone could not copy your exact photo, but they could take a different photo of Mount Everest making different creative choices.
The same is true of taking a photo of work in the public domain, like the Mona Lisa. If you make no creative addition to the Mona Lisa in your photo, then you have no copyright at all. If you put some creativity into your photo, like some interesting lighting, then those creative elements are protected. But anyone else could still take a photo of the Mona Lisa with different lighting, the subject itself is not under copyright.
Now suppose you tell an AI, "Draw me a superhero", and it outputs ChatMan. If you make no further creative additions, then you have no copyright at all. But suppose you add a caption to it. Then the caption is your creative expression, so that is protected. But the rest of ChatMan is not, it's in the public domain just like the Mona Lisa. Anyone else can make their own version of ChatMan that's exactly the same minus your caption, because the underlying subject is not protected.
You just inadvertently explained why copyright doesn't cover training. Thanks.
Copyright doesn't cover the output of training. But AI companies are being sued over training input.
If you want to download a bunch of images from the Getty catalog, you need permission from Getty. If you don't have their permission and download them anyway, you can be sued. It doesn't even matter whether those images are used for training or some other commercial purpose unrelated to AI.
Depends on the training and the output.
Just like if you photographed the Mona Lisa in such a way as it recreated the piece as if it wasn't a photograph, a model sufficiently trained that can reproduce the original training data, you have copyright issues.
Problem is that many models can do this, but it's a mathematically improbable occurrence.
If I make a stamp that's made of 1 billion exact copies of different copyrighted photos and cut it infinitesimally small, and mixed it up, the problem that it can produce the original work that it was made from still becomes a copyright issue.
You'd have to prove the opposite, in fact. That it's mathematically impossible for your model to reproduce the copyrighted content for it not to be an issue
It's human expression that is protected by copyright. Creative height is the bar.
If you've done nothing but press a button there's often no copyright. Photography involves things like selection of motive, framing, etc. If you just photograph a motive which itself doesn't have copyright, then what you added through your choices is what you may have copyright of. Using another's scan of a public domain book might be considered fair use, for example (not much extra expression added by just scanning)
Independent creation is indeed a thing in copyright law. Multiple people photographing the same sunset won't infringe each other's copyright, at least not if you don't intentionally try to copy another's expression, like actively replicating their framing and edits and more.
Doesn’t modern art include works that are simply paint streaks left on canvas from someone quickly swinging a brush with paint on it at a distance?
Why is the phrase used by an AI prompt not considered more effort than that? The former requires no thought, only movement. The latter requires an understanding of language, critical thinking and the ability to envision an end result that isn’t just a paint splatter.
Because in a Jackson Pollock painting, the artist was in complete control of his paintbrush as it swung through the air. Not to mention the choice of brush, the amount of paint, the color, etc. If there is a blue streak in the upper left, it's because Pollock wanted a blue streak in the upper left.
An AI prompt is more like handing your camera to a passerby in Paris and saying, "Please take a photo of me with the Eiffel Tower in the background". If your belt is visible in the photo, it's because the passerby wanted it there. That's why the passerby, not you, has a copyright over the result.
Your first paragraph is just nonsense. Please go try to swing a paintbrush and get every drop exactly where you want. It’s not possible. It’s literally why pollock painted that way.
Being in control does not mean achieving what you "want" or intend.
You are in control of your car, even if you unintentionally hit a tree. Likewise, Pollock controls his paintbrush, it is held by his hand which only he can move. If he flicks paint on his friend's new jacket that might not be his intent, yet he is still 100% responsible for that outcome.
Your words.
Yes, he wanted a blue streak in the upper left. That doesn't mean he intended every last drop of blue paint exactly as it landed. He is nevertheless responsible for every drop of paint, because he controlled the paintbrush and he is the one who caused them to fall where they fell.
Likewise, a surgeon wants to cure a patient with a scalpel. He doesn't necessarily intend every complication that happens to the patient. He is nevertheless fully responsible, because he fully controlled the scalpel that caused those complications.
Your logic literally applies the exact same to ai generated art. It’s quite clear you haven’t even tried it if you think that the artists are just asking for an entire image and then saying “all right. I’m all done here”.
Listen. I don’t think ai art should have a copyright either, but it has absolutely nothing to do with the logic you’re coming up with. Control net (or even just basic Adobe Photoshop now) allows anyone to do exactly what you are saying a “real” artist does.
Hmm.. what about pendulum painting? Where you put paint in a bucket, put a hole in it, and let it swing back and forth over the canvas?
On one side he chooses paint and size of hole and initial path and so on, but on the other hand he let nature and physics do the actual painting for him.
In this case, it sounds like all the key creative choices (eg form, color, background) were made by the artist.
No they weren’t. Their brush was being influenced by every piece they had seen before. None of those arguments are any different than the resin was in control of the prompt when they requested the image. This is nothing more than human/biological exceptionalism.
Copyright law is absolutely based on human exceptionalism, because it is meant to incentivize humans.
Indeed. ‘Fountain’ is widely recognised as a major landmark and it’s just a urinal in a museum.
https://en.wikipedia.org/wiki/Fountain_(Duchamp)
The painting "This is not a pipe" sort of touches on this very topic. A picture is not the thing pictured much like a photo of an AI image is not that image.
Fun mind teasers!
You can copyright a combination of words, though, and it was his unique combination that created the art. The artist doesn't copyright the palette, and the shop that sold the pigments holds no ownership over the painting. If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
If I use a combination of words to commission an artist to paint a picture, I don't own the copyright on that picture.
If it's a commission, you might. Depends on the how the contract is worded.
Okay, let's see the contract in this AI case that grants this man the copyright.
The contract is set by the company, let's say Midjourney, which passes ownership to the person who generate the "art." What needs to be defined is if ai generated art is art? So far, no one seems to have a definite answer. I come down on the side of yes, but there are a lot of others that say no.
Which company passes the ownership to the person in its contract? Midjourney does not, I just looked:
https://docs.midjourney.com/docs/terms-of-service
They make it clear that you do not own the copyright on the images you create. Did the artist suing the copyright office use this company?
A licence isn't a copyright, though?
https://help.midjourney.com/en/articles/8150363-can-i-use-my-images-commercially
In no way does Midjourney own the image, they only have the ability to "reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute".
That has absolutely nothing to do with who owns the copyright. I already quoted to you from their own ToS and linked to it.
It has everything to do with what the copyright gives them the right to do, which is: reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute". They cannot claim ownership of the art. If you were to create art that is illegal, they do not own it and are not responsible for that.
And since you want to quote the TOS, here is the first part which you ignored:
You said it was based on the contract. The ToS literally says Midjourney owns the copyright. This is pretty cut-and-dried.
I'm getting really tired of trying to explain this to you. Their copyright does not give them ownership, it gives them very specific rights. These rights are:
If you create CSM with Midjourney, they are not the owners and it cannot be used to sue them. They don't want that smoke. They do not want ownership. They make it very clear in the part you skipped over that you own your work, they simply own the right to "reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute".
The article makes that perfectly clear.
The article makes it perfectly clear that he used Midjourney.
Midjourney makes it perfectly clear that he does not own the copyright to anything he uses Midjourney for.
I'm not sure what your point is.
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?
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.
so its literature, then?
Sure, the artist doesn't copyright a palette, or the shop does not hold ownership of pigments. But Companies do patent pigments.
If you commission an Art piece, with a detailed description of what it should display. The artist comes back to you with a draft, you tell them to adjust here and there, and you finally after several rounds of drafting got the commissioned art piece. Did you draw it?
Thats what LLMs do and nothing else.
Is the diction of the buyer to the artist in the final paragraph of your argument make the painting a novel? You have you answer.
Yes, companies can copyright specific pigments, but that doesn't give them ownership over the paintings created by them, only protect for their own IP vis-à-vis the pigments. In the same way, the company that created the LLM may protect their work but hold no ownership on the art it produces.
Who drew the art is of no import when the artist isn't a sentient lifeform. By your definition, a photographer cannot own a picture because the camera captured it.
No, you cannot copyright a pigment. Companies can use colors as trademarks, but that just means that competitors can't use the color in a way that would confuse customers. For example, you can't start a courier service with vans that are the same color as UPS vans, because that might confuse customers.
You are still free to use that color in ways that are unrelated to UPS, for instance as an eye shadow.
Patents are another matter entirely. You don't patent the color, but you might be able to patent the media (e.g. a new formula for quick drying paint).
What does the company protect here? The system, or the model? Which the latter being ill-gotten by scraping already copyrighted content?
It was an allegory. The supposed artist is the commissioner and the LLM being the artist. And since you can't copyright something you didn't made, well tough luck getting copyright on AI slop.
No, because as a photographer you hold the tool in your hand. You can adjust everything, even the subject. And its all in your own control and it takes your skill in managing it to shoot the perfect photo.
If we would take your interpretation of my definition, then nobody can own anything since they always have to use a tool to create something.
It’s a good analogy but one thing to consider is that the artist is the copyright holder.
The company that directed it only has the copyright either by explicit contract transferring rights or because it’s a work for hire where the employee’s copyright work is “automatically” transferred to their employer.
Some interesting case law on that from Disney artists, comic book authors, etc
https://copyright.gov/circs/circ30.pdf
That depends on what is proprietary to the company. If they have created the system and the model, then both.
That is a highly subjective point of view. Let's look at music. If a musician loses their arms and can no longer play an instrument, but instead dictates the chords to someone else to play, who is the artist? Who can claim ownership of the piece?
Spoken like someone who has never used an LLM before and thinks it magically produces exactly what you want on the first time, every time.
No, that's everyone else's argument. Mine is that the tool is the LLM, and that when art is created with it, it should be open to copyright.
Then that musician becomes the composer who can copyright the sheet music. The one who plays the chords becomes the performing artist and can copyright the performance.
I have used LLMs extensively, several versions and types. I know how that shit works. And no I do not think that its results are deterministic and accurate.
The LLM is the "artist" as it produces the image. And you can't claim copyright for someone else.
That is if they actually composed the music. In the case of someone saying I want a song that is ABAG, and they ask that it be written down because they cannot write it down themselves, the person who writes down ABAG isn't the composer, they are an extension of the pen that writes the note--they have become a tool.
The LLM gives you what you ask for based on a random seed and keywords in your prompt. It has no will of it's own. It cannot exert its will over the image. It simply outputs. As I've said in another part of this thread, if I tie a bucket of paint with hole to a rope and sling the bucket of paint over a canvas, does the bucket of paint get credit for being the artist? Does the rope? No. They had no will. Even though my input was minimal, and the results most assuredly random, I am still the artist by all accounts, and as such may copyright my random sprays of paint should I deem them worthy. My intent has created the art--my desire. The machine cannot create because it cannot exert its will. It simply does what it is asked and outputs.
Then we are again in a commissioner situation. The guy who commissioned a composer to write them a song according to their specifications.
In regards to your bucket of paint.
That's an art installation which you can copyright. The resulting artwork on the canvas can't be.
Do you have anything to back that up?
Threshold of Originality.
Damien Hirst and Jackson Pollock would like to have a word with you.
Then the real artist, the AI, should request the copyright. And sue the charlatan that tried to take its work and claim all credit.
And the camera owns the photograph, and Photoshop owns the digital image, and Final Cut Pro owns the film? The tool owns nothing. The tool is incapable of ownership
Thus the value of the art is reduced to an idea and the human labor invested. The labor is practically zero and an idea is worth nothing. That means there is nothing worthwhile to copyright
Wow.
And how do you define a tool?
Couldn’t you take a picture of the leaves and copyright that?
Yes, you could. BTW I just took a screenshot of your comment so it's mine to copyright.
I mean, literally yes, though?
Like, it's not meaningful at all, but yes, it's copyrightable.
Exactly my point, copyright law is ridiculous.
If I made an image in photoshop, the computer made it, I just directed it.
How is AI different?
And that's why I make art completely without instruction or man made tools. I actually independently developed cellphones and English purely to dunk on people on the internet.
Funny but that is kind of my point, where is the line and why?
What are you talking about? The computer didn't make it. That's like saying a paintbrush made a painting.
That is not even close to AI image generation.
We could explain it to you, but you're not interested in understanding.
I'm being honest, I get that they are not the same, I just don't understand why the line is drawn with AI, Why wasn't it drawn with photoshop?
They tried to draw the lines with Photoshop, and with cameras, and with pre-mixed pigments, and probably more.
It's been used many times before, but I like the analogy of ordering food. If I go to a restaurant and order risotto, I haven't made the dish, I've only consumed it. I want you to focus on that word "consume", it's important here.
Another idea I've seen recently that I like was a summed post something like this:
I know I'm using a lot of analogies here; from food to writing and now the visual medium - but stick with me. Completely sidestepping any lofty notions of soul or humanity, let's look strictly at what's being communicated in a visual piece of art generated by AI. It's an idea, one containing neither your specific style (the creative process) or vision (the final product), though you may feel you get a close approximation after several iterations and a detailed/complex enough prompt. If you wanted to convey the idea of "eagle perched in a tree", you've already done so with that phrase (or prompt in this respect). By providing an AI-generated image, you've narrowed my own ability to interpret down into the AI-generated noise now taking up space between us.
The reason you'd use AI-generated art is because you need to fill space, like the thumbnail to go with an article. An empty space to dump things into. While I can't ever claim enough authority to define what exactly art is and is not (nobody can), I can say with absolute certainty that no matter how far the tech evolves, to me PERSONALLY, AI will only ever generate content, not art. There is already more art in the world than I could possibly consume in a hundred lifetimes, I neither want nor need this garbage.
I understand your point, but I disagree.
As someone who has a very vivid imagination and absolutely no artistic skills, and who doesn't enjoy drawing, i find that being able to produce my ideas through words is amazing.
For me, AI art is a tool that enables me to express ideas that would otherwise never be expressed.
I don't consider a few lines of prompt of the top of your head art, but if someone sat down, revised, tweaked and put effort and imagination into it, isn't that art? Would it be more of an art piece if they just published the text instead of the generated image?
If I buy a bread at the bakery, ham and cheese in the grocery store, and make me a sandwich, who's the creator?
AI Prompt User is complaining people stealing their artwork? Well that's new.
If you didn't make it, how the fuck can it be stolen from you?
Machine output cannot be copyrighted. Whether prompt tweaking and the other stuff involved in making AI art is enough for something to not be considered machine output is still to be decided by the courts.
How much of it does he have to make in order for it to 'count' in your mind?
He spent weeks on fine tuning tbf
It's like photography: Photographers often spend weeks trying to get the perfect shot, should they be allowed to copyright it?
Another thought experiment: If I hire an artist and tell them exactly what they should draw, which style they should use, which colours they should use etc does 100% of the credit go to the artist or am I also partly responsible?
According to these people, YOU become the artist, AND the AI is the artist.
Normally, if you're commissioning a piece of art for commercial purposes, you would have some sort of contract with the artist that gives you the copyrights. Otherwise, the copyright belongs to the artist that produced the work, even if you buy the product.
Then there needs to be a copyright ownership agreement between the artist in the article and the artists' whose work was used to train the AI...
But does the artist get 100% of the credit? Ignoring copyright for now, this is just a thought experiment, who's getting how much credit?
There is no legally defined basis for "who gets credit." An artist is not a tool that you used to produce art. The artist produced the artwork. They own the artwork and copyrights (that is, the right to make and distribute copies) unless there is some legal arrangement that says otherwise. The fact that you paid them and told them what to do, by itself, means nothing in a legal context. That's why, if you're paying an artist to do creative work, or if you're an artist being paid to do creative work, you should always have a contract that defines, among other things, what everyone's rights are with regard to the final product.
If I order an art piece by someone, and reject thousands of finished pieces for it to not meet my standards, will i become an artist?
According to anyone in the Stable Diffusion communities, yes. And as a matter of fact, because I responded to you, I am now a novelist.
If I take lots of photos, print out and frame one of them but delete the others, will I become an artist?
you see here the thing is "I Take" you did the thing,
What about "I Generate"?
your not doing the work, you are telling the computer to do the work based on words you typed in, at best you could argue you own the copyright to the prompt you typed in, but not to what the computer generated. You did not generate, the computer generated
How is that meaningfully different from "the camera generated"? Both result in a full image from a single input.
"you're not doing the work, you are telling the camera to do the work based on a setting you found / created, at best you could argue you own the copyright to the setting, but not to what the camera captured. You did not take a photo, the camera took it"
If I order an photograph by someone, and reject thousands of finished pieces for it to not meet my standards, will i become a cameraman?
Weeks? That shit can be done in mere minutes.
https://petapixel.com/2022/09/01/ai-generated-artwork-wins-first-place-at-state-fair-enraging-artists/
He’s still not an artist.
While some just snap a photo. And both are equally copyrightable
its debatable who the artist is, however, because if you remove the ai from the picture he could never have made this, and if you remove the training data the results would also be different.
Realistically: everyone whose data this was trained on should be included as authors if its not just public domain
There were similar debates about photographs and copyright. It was decided photographs can be copyrighted even though the camera does most of the work.
Even when you have copyright on something you don't have protection from fair use. Creativity and being transformative are the two biggest things that give a work greater copyright protection from fair use. They at are also what can give you the greatest protection when claiming fair use.
See the Obama hope poster vs the photograph it was based on. It's to bad they came to an settlement on that one. I'd have loved to see the courts decision.
As far as training data that is clearly a question of fair use. There are a ton of lawsuits about this right now so we will start to see how the courts decide things in the coming years.
I think what is clear is some amount of training and the resulting models fall under fair use. There is also some level of training that probably exceeds fair use.
To determine fair use 4 things are considered. https://www.copyright.gov/fair-use/
This is going to vary a lot from training model to training model.
Creative works have more protection. So training on a data set of a broad set of photographs is more likely to be fair use than training on a collection of paintings. Factual information is completly protected.
-> Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
I think ai training is safe here. Once trained the ai data set usually doesn't contain the copyrighted works or reproduce them.
Here is where ai training presumably has the weakest fair use argument.
Courts have to look at all 4 factors and decide on the balance between them. It's going to take years for this to be decided.
Even without ai there are still lots of questions about what is and isn't fair use.
Hmmm. This comment made me realize that these ai images have something in common with collages. If I make a collage, do I have to include all the magazine publishers I used as authors?
Not defending the AI art here. Imo, with image generating models the mechanisms of creation are so far removed from the "artist" prompter that I don't see it any differently than somebody paying an actual artist to paint something with a particular description of what to paint. I guess that could still make them something like a director if they're involved enough? Which is still an artist?
I dunno. I have my opinions on this in a "I know it when I see it" kind of way, but it frustrates me that there isn't an airtight definition of art or artist. All of this is really subjective
if you make a magazine collage you've already paid all the magazine authors for their work by buying the magazine. I know its not perfect, but at least in a collage situation there is some form of monetary trail going back to the artists.
If the AI company were to license their training data this would be an almost perfect metaphor. But the problem is we've let them weasel in without monetary attribution.
It comes down to how transformative the work is. They look at things like how much of the existing work you used and how much creative changes were made.
So grabbing your 9 favorite paintings and putting them in 3x3 grid is not going to give you fair use.
Cutting out sections of faces from different works and stitching them together into a franken face could give you enough for fair use if you made it different enough.
I don't know how collages work, but samplers do pay every single artist they are sampling for their use of the song.
No but you don't get it, they wrote a couple words and also they know how to use the spot healing brush in photoshop, they're a REAL artist!
To be somewhat fair this prompt probably took quite a bit of work. Still way less than even producing it digitally but not a couple words.
Weird how we make this rule only apply to computers.
I doubt any human artist would make the exact same works as they have if they were not influenced by the art that they were.
Why is it weird to have different rules for computers and humans? They're pretty different...
So you're saying the AI should own the things it makes?
Broken analogies aside, The twin major problems are
most the data is still intact that AI often recreates it. I think court cases about this are ongoing.
It breaks authorship chains. humans often have to wade through ads or buy products to 'add data' to themselves. So if you buy a magazine, you often contribute back to the source artists. or even cite them. AI does not do this. Which is why licensing datasets is a proposed solution to prevent AI from being a death spiral for creativity.
"""Artist"""
My thoughts exactly.
Super interesting. The guy claims is wasn't just ai, that he performed alterations as well. If that's true but he still gets shot down it might pave the way for AI being much more shunned in the world out of IP concerns on the output side rather than the training data.
You can't copyright that music, game, book, screenplay or video because AI made some contribution.
Nah, that won't work. As soon as corporations get involved they'll carve out exemptions for themselves.
Corpos are involved.
That douche punched a sentence into a computer and thinks he’s an artist? My god what have we become.
The jokes write themselves, folks.
Yeah, the joke is that someone thinks they can call themselves an artist by typing a sentence into a prompt on a computer. I get that you’re trying to call me out, but the failure in your joke is that I’m not claiming to be an artist. That douche is.
You’ve got nothing.
I mean, everyone knows writing isn't art. It takes no skill to make something meaningful out of words.
Keep trying, you’ll get there one day.
That's a matter of perspective.
Dude just pointed a camera, pressed click and thinks he's an artist? My god what have we become. We could take that train of thought all the way to "if you're not grinding up your own pigments and painting on cave walls you're not really an artist".
AI is a tool. I don't have an issue with someone using AI and calling themselves an artist, as long as they've generated the AI model based on their own previous art. You teach a machine to mimic your brush strokes and color palette and then the machine spits out images as you taught it. I don't see an issue there because you might as well have painted them yourself, it just saves time to have AI do most (if not all) of the work.
Problems arise when the AI is based on someone else's work and you claim the output as yours. Could you have painted the image exactly the same way?
That's, uh, not what happened here. And I've never heard of anyone doing that. Anyone with the skill to draw the kinds of pictures they want would simply draw the kinds of pictures they want instead of putting in tons of effort to get an AI to do it worse
Prompting an AI is not making art
I agree. He shouldn't own that image.
I think that's a matter of time until it becomes the norm. There was a time we painted literally everything and then photography came along. You could make the same argument against photography because back then photography needed setting up, the images were black and white and you could arguably do a better job painting it instead. However photography took over because you could spend the next how many hours or days painting something or you could go click and have the photo that isn't as "high quality" but is close enough.
I think in the future artists will use AI to quickly prototype through ideas and when they get roughly what they originally envisioned, they take the AI image as a canvas and touch it up a bit. Sure they could paint it themselves and spend the next week prototyping all sorts of ideas before creating the final image, but would you really do that when you could spend maybe a day prototyping with AI and then another day to fix up the image? Maybe the image doesn't even need fixing up, maybe the AI generated exactly what you imagined?
I think the statement "then photography took over" is doing a lot of work here. It's incredibly inaccurate to say that photography took over as the primary means of visual creativity.
Photography took over as the primary means of capturing a moment. Sure it's used artistically sometimes, but primarily it's used for subjective reality. I would argue that painting, and especially digital painting, is at an all-time high due to the ease and relatively low barrier to entry.
I think that most artists would still prefer to paint something that they can consider "their art", over typing a sentence and getting back a result. Sure, it's neat, but it will never be anything more than a novelty, or a shortcut to generic results. The process of creation is only really 50% the final result, and the process itself is an important aspect and not just a means to an end.
Using AI just feels like a weird commodification of art - like using only pre-made Unity assets for a game and nothing else, and then having someone else make it for pennies.
I've seen so many bizarre "AI artists" cropping up, especially online, who legitimately try to sell AI art online for hundreds of dollars. I think the reasons people buy art can usually be put into three buckets: they appreciate the process that went behind it, they like the style of the artists or that painting in particular, or they find some meaning in it. If you wanted to buy AI art why not just prompt it yourself. What process, or artistic style, or meaning is even in AI art?
It's not even like AI can be trained on an artist's own works. It takes millions of samples to train AI, which a singular artist would never be able to produce. So, at some point, that model will have had to have stolen the content of its results from something.
so i have no skin in this discussion, but i thought i'd point out that this is generally not how it works. there are image generation models trained on only public domain works (specifically because of concerns like what the thread is about). you can take a model like that and "continue to train it" on a fairly low number of works (20 to 200 is generally enough) of a particular style, which results in a much smaller (tens to hundreds of MB) low-rank adaption or "LoRA" model. This model is applied on top of the "base" model, morphing the output to match the style. you can even add a multiplying factor to the lora model to get output more or less like the style in question.
I think my context there was pretty obvious so it's somewhat disingenuous to take it out of context. Photography has largely taken over portrait paintings. I think photography has also largely taken over scenic paintings. I never said it completely replaced painting, it became a tool in the hands of artists the same way AI art can become a tool.
And I think artist will use AI to come up ideas for their art and use the output as a canvas.
Because that's the current use of AI. It doesn't mean AI will stay this way.
I'm not talking about those people and I've already mentioned elsewhere that their "work" can be considered questionable.
Let's say the artist trains an AI model solely on their own previous art and then releases some of those AI generated images. The person who likes the style or a particular painting, do they care it was made by AI? Doubt it, because it's in the artists style. The person who appreciates the process that went behind it, is "I put my previous works into an AI model and the model generated this image based on what I imagined this image should be" really that much less impressive than "I imagined what this image should be and so I sat behind my drawing board and drew it"? As for meaning, the artist still chooses what to release. If they release something it must have a meaning. I think it would be extremely disrespectful towards an artist to claim the art they chose to release has no meaning.
I thought we were talking about it from a philosophical point of view. I'm not about to predict the future and claim it could or couldn't be done, but let's say it could be done. Would that change your opinion?
People absolutely did rag on people like Turner for using pre-mixed paints. People absolutely did rag on photography.
Only the names have changed.
Ahh yes, the camera bullshit. Here we go…
Yes a photographer is an artist. They need to know light diffusion, locational effects, distance and magnification, aperture, shutter speed, and have a subject prepped and able to take direction. They also have to have an insane understanding of post process editing.
They don’t simply type a sentence into a computer and get beautiful photographs.
A child can produce the exact same image by simply typing the exact same sentence into a computer.
A child cannot be given a camera and be tasked to produce the exact same quality photo of a professional photographer- and succeed.
So stop with this bullshit comparison. It’s apples and oranges.
Um. A macaque did. And every photo a child takes with a smartphone is considered to be sufficiently creative as to be a copyrightable work. It doesn't need to be "good" to be art.
"What is art" can be a difficult question. But "how difficult was it to create it" is not the answer.
If a skillless child can reproduce it with no training but a command of their language of origin, it’s not art. You can give a child a camera but they’re not gong to be Ansel Adams. Yet you can give a child a computer and voilà! You have Stable Diffusion.
I’m not arguing this with you any further.
The art is in the eye, not the device. People made the same or similar claims about photography. "It's just reproduction not creation!" "It's just operating a machine that does all the work!"
AI is a tool - the person is the creative.
You may not like the art - but that's not to say it's not art. Either way I think it's a creative work and worthy of at least the option to be considered art.
In my eye, AI isn’t art and using AI doesn’t make one an artist. In fact I think it’s an insult to at and artists that talentless hacks are now claiming the title when it takes a lifetime to develop a craft to become an artist.
It’s shameful.
In my eye Jackson Pollock is a no-talent hack who created meaningless crap that looks like somebody left a 2yr old unsupervised in the arts and crafts room at school. And I think it's an insult to other artists that his work is so heavily prized.
But we're talking about the quality of the work here aren't we? Not whether it is a work at all. You're effectively saying that you don't value the work because it was easy. Which is fine - that's your value call. But to deny that it's a creative work at all is an entirely different thing.
And you’re allowed to think that with no argument from me. But do you see how many people have rushed to tell me how I’m wrong with their shit examples?
AI isn’t art. It never will be. Using AI doesn’t make someone an artist. This is what I think. And it’s going to have to be okay.
AI can be art. And you're like the people criticizing the first photographers saying what they did wasn't art. This is what I think.
And it’s going to have to be okay.
No, it’s not going to be okay being accused of something that I’m not. Photography IS art. AI is NOT art. So I’m not at all like the people saying it wasn’t.
You’re free to disagree with me on what is or isn’t art, but don’t accuse me of being like anything until you know exactly what I’m actually like.
Cool?
Cool. You’re now a novelist because of That paragraph. Congratulations!
Did you read the rest of the comment or did you stop after the first sentence?
I didn’t need to. The moment photography was brought up as a comparison, that’s all I needed to know.
AI is not art. Period.
Let's say I've been an artist for 10 years. I take all my work and stick it into an AI model. That model starts generating images based on the art I've created in the past 10 years. Have I stopped being an artist because I put down the brush and picked up a keyboard?
How would a child produce the exact same image if they don't have my AI model?
You did not stop to be an artist, you just stopped to make art and every kid is able to recreate what you did, because all it have to do is type your name in prompts.
More than that, every kid drawing with a crayons on papers or on tablet is more creative than you this time.
Congratulations! You’re now a poet for having typed that sentence!
Are you okay?
If I run this through AI, do I get to be an “artist” like you?
That assumes you have a big enough data set to even make anything useful with just your art. And we know that that was not the case here
That's not the case here and I think the artist in the article has no claim to that image. I'm against the general idea that using AI instantly disqualifies someone as an artist, which is what the other person believes.
The moment your art was run through AI, it was no longer yours, and no longer art.
I’m done talking about this. I stated my point, my opinion, and I have no intention to change it. AI is garbage.
If you want to be the old man yelling how the world is changing for the worse, go ahead. You are entitled to your conservative opinion.
k. Thanks! I have been waiting for weeks for permission from an AI “artist” to be allowed to have an opinion on something.
You’ve helped me out a lot!
Firstly, I agree with most of what you've said. However...
Is there anything in the world that isn't a derivative of something else? Can you claim to have a thought that isn't influenced by something you've heard, read, seen? Feeding art to AI is no different than a student walking a gallery and learning the styles of the masters. Is the AI better at it? Sure. But it's still doing the same thing. If someone with eidetic memory paints like Picasso, are they not an artist?
To really drive home the point, if I have a friend that is an artist, like, a really good artist, and I ask them to paint something for me, say, a field with wildflowers in the snow, and they come back with something that looks just like Landscape With Snow by Van Gogh, does that mean my friend isn't an artist? If I ask AI for that, and they come back with something like what my friend painted, how is it any different? We call them "learning" models, but we refuse to believe that they "learn". Instead we call it "theft".
Yes, i have made something that wasnt influenced by anything else
I mean, I don't believe you?
I didn't say I'm completely against imitation. I more or less implied that's where lines start to blur. If someone spends their entire life learning Picasso and can perfectly imitate Picasso then I don't consider that to be not art. Similarly if someone did that and fed it into an AI model that then imitates them imitating Picasso I think that's still fine.
But if you throw in all the famous artists and have the AI generate an image could you really imitate it? Not only would you have to imitate how all of them paint and what colors they use, you should also be able to tell the difference which part of the painting was influence by which artist so you could imitate it correctly. And if we factor in that AI can blend brush strokes it becomes even more harder to actually imitate. That's so muddy water it's easy to make arguments for and against.
Congratulations! You’re now a journalist for having typed that paragraph. Man, you’re really racking up the careers here!
(Do you see the point here? Using a tool that does all the work for you, doesn’t make you comparable to those that spent their lives doing it without cheating. Just like typing something out using auto-correct doesn’t make you a journalist).
I'm not sure I understand your argument. Are you saying that because AI can blend together the works of hundreds and create something unique, that it is bad?
I'm not saying it's bad, I'm saying claiming it as your own original work becomes very questionable. If you want to claim AI art as your own work you have to use only your own artistic expressions in the AI model.
This artist didn't "teach" the AI anything though. No more than I "teach" my computer something when I do file search using operands like "+" and "-"
I've covered this specific multiple times already. My point was more against the general idea that anything AI related is not art.
oh look, someone who knows nothing about the topic spewing shite again!
So, you’re now allowed to be called a novelist because of that reply. Congratulations! Enjoy your new career!
yeaaaah no chief, that ain't it.
boo fucking hoo. If you want to copyright your painting, learn to fucking paint.
It also sucks and is just another shitty AI generated image full of weird nonsense.
Just because he duped a bunch of idiot judges doesn't mean his art or his arguments have any merit.
Can’t be that shirty if it won an art competition.
Art competitions can be insanely pretentious, throwing some vaguely pretty shit can win over the judges sometimes. My town hosted a art show competition thing where they had a judged award and a voted award. The judges granted it to some dude who made a purposefully pretentious painting to see if he could get the award, the general vote award went to a hand forged bronze axe based off of Minoan double headed axes.
This hasn't been reported on much, but I actually checked what that "competition" really was, back when the image won the prize. It was some local festival in Bumfucknowhere, USA, which among various other events (sport events, food tasting, that sort of stuff) included an art competition. I doubt the jury was made up of highly experienced art critics.
And besides, people should trust their own eyes. If you like the picture, you like it, and if you don't, you don't. Appealing to the critics as a source of objective artistic judgment is naive, and I say that as someone who has published some art criticism myself.
Oh gee so scammers aren’t getting protection for lying? Dang what a cruel world poor him…
/s
Good luck, buddy. AI output has already been ruled not copyrightable. As it should be.
Copyright and patent laws should die altogether.
This is stupid and I hope he gets his butt handed to him, but:
Journey outside the world of API models (like Midjourney) and you can use imagegen tools where " the human that decides on the elements of the picture"
It can be anything from area prompting (kinda drawing bounding boxes where you want things to go) to controlnet/ipadapter models using some other image as reference, to the "creator" making a sketch and the AI "coloring it in" or fleshing it out, to an artist making a worthy standalone painting and letting the AI "touch it up" or change the style (for instance, to turn a digital painting or a pencil sketch to something resembling a physical painting, watercolor, whatever).
The later is already done in photoshop (just not as well) and is generally not placed into the AI bin.
In other words, this argument isn't going to hold up, as the line is very blurry. Legislators and courts are going to have to come up with something more solid.
The rule is already human expression in fixed form, of creative height. So you have to demonstrate that you the human made notable contributions to the final output.
I'm sure that an argument can be made that the final output can't be generated without the human-created prompt. Generative AI doesn't output images on its own without a seed/prompt, much like a canvas doesn't paint itself and a camera doesn't open the shutter on its own.
Human involvement isn't the rule though. Again, that which ends up in fixed form has to carry expression by a human. Otherwise everything from dirt stains to footprints you accidentally create would be under copyright.
The prompts aren't generally considered enough because there's too little control over the final expression, the same prompt can create wildly different outputs.
AI art isn't made by just entering a prompt, picking an output image, and calling it a day. There's actually a lot more involvement necessary to get the final output to be what you want. Some more advanced pieces of AI art take hours of tweaking the prompt and redoing certain sections, balancing positive and negative prompts and their weighting, not to mention training a model in the first place and touching up the final output in Photoshop.
There's a very big industry behind AI art right now, and they're not just using DALL-E prompts to do it. Whatever your thoughts about AI art may be, there's no denying that a large amount of human labor is involved in the creation of any piece.
Womp womp
He did not make it. He essentially commissioned a machine to create an image for him using millions of pieces of art that were stolen from artists. It's no different from commissioning an artist to draw something for you, except the artist turns out to be someone who traces bits of other people's art, or copy and pastes it, and then you attempt to take credit for it instead by claiming that you made it. I predict that this lawsuit is not going anywhere as he does not have a proverbial leg to stand on.
Fun idea: let him copyright his prompt, if he's so particular about his "creativity."
Ah, I remember this image. It received some kind of award or something and created a stir when it was revealed to be AI gen. I can see why that would be incentive to want copyright.
I play with AI image generation all the time. No way do I see that as my work, there’s no skill other than positive and negative prompts, maybe feeding it a a starter image set or something.
Where it might be more concerning is if you use AI gen to create an 2D example of something, then an artist creates a 3D physical representation of the thing. Who owns it? AI famously is not good at creating “whole” things, but one can certainly interpret that image to make a whole of it.
I guess no one owns it, it's like in the common societies mind or something, especially if it's an ai model trained on free stuff found in said society.
Like a chair; paint it, draw it, build it, cannot copyright it but you can't make an exact copy of someones fresh creation either.
I play with image editing software all the time. There's no skill other than adding or changing marks, maybe using a reference or something.
""my work""
The problem is "intellectual property" and capitalism more generally. As technology makes art harder to define and control, the absurdity of violently controlling art will hopefully collapse along with capitalism in general.
Intellectual property as a concept is incompatible with the continued advancement of human knowledge. Before copyright and patenting, we still had trade secrets and sensitive information, and those things cost us insights into metalworking we are still slowly recovering to this day. We still can't figure out how Roman's stumbled upon some of their glass blowing breakthroughs, and we just recently figured out Roman concrete.
Capitalism didn't invent greet, but it's certainly allowed greed to flourish as a core precept of its design.
I keep saying dude could have just painted it over by now. Is he just stupid. Just paint the picture you already have it.
"artist"
He's already made a greater impact on art than those who created images themselves.
So he's an artist in the sense that a guy with a sledgehammer is a builder.
"Artist" needs to be in quotation marks.
I’m glad you posted this here, because there’s obviously a lot of controversy about this.
no artist to begin with
they can copyright the prompt, right?
In my experience with AI image generation, the same prompt, run several times, produces different images each time.
The reason the image is different using the same text prompt is because it randomly generates a seed for each time it runs. Presumably the copyright would include all the settings, including the seed. All of that kept the same will produce the same image, every time.
Edit2: I wrote this in response to the first comment I read but after reading rest of thread I wanted this more visible. I'm not karma whoring and didn't mean to spam the comments posting this twice but the comments here are all engaging as fuck but feel like they're all circling around what im specifically pondering.
So why can't he copy right the prompt which created it? Obviously not being 100% cereal about this specific scenario but in the early days of GPT4 I fed it fucking dissertation length prompt threads writing ridiculously niche and in depth scripted functions. I don't know how to code but used a tool to create something extremely useful for my job. Some of the project took weeks to fully put together.
So what Im really asking is, why would it matter if I used cnc lathes to make something id want copywrited/patented or if I use a LLM to make it? Should it be any less protected because it's taking the "muscle" or "legwork" out of it? Should engineers only design prototypes destine for copywrite/TM/R/patent office if the prototype can be made on manual machines? Again, I kinda understand I went over the top with this but I am fascinated with how the fuck people are guna come up with regulatory frameworks to define the modern age of intellectual property and all the TM/C/R/P drama to follow.
Edit: To expand, the shit I have made using GPT having limited but interested experience with IT work also didnt stike me as anything marketable until I got feedback from vendors and customers I gave it to but from reps that didn't know I made it. It's not the point of me asking I just thought itd help anyone who is guna respond to see that my questions are coming from more of a manufacturing a tool type of understanding rather than the AI toookurjerbs from the suffering artist or musician type of understanding.
I'm taking the bait.
The art he prompted was drawn from and trained by art that wasn't his. The art was created by unsuspecting artists and then was blundered together like a frog until it created the image. He may have edited the image later on with a 3rd party program. But that's still altering art built from an amalgamation of others art.
And this isn't the same as line tracing or referencing other's art because that still requires the user to put pen to paper and wholly create something by hand. Or hand to digital modeling software. Something that actually takes hours of work and concentration. Not coming back to your PC to change the wording in your prompt and then walk away for an hour or whatever while it blends stuff together for you.
If the original creator of the art work should get the copyright then the thousands of artists who drew the original training material should get those copyrights.
This is the same problem with AI in other fields. It's drawn from the work of humans.
Moreover, I don't want to remove the human element from art ever.
Huh? Did you respond to the correct comment?
The philosophical depth of so many comment threads on this post kind of highlights the issue with AI and intellectual property rights.
By definition, AI leverages existing work, crucially in a way that usually does not credit or benefit the original creator.
If I took two images from random creators, cut one out, and pasted it onto the other: have I created a new work? Is it a copyrightable work? (I genuinely don't know the answer to that).