Opinion: The Copyright Office is making a mistake on AI-generated art
Opinion: The Copyright Office is making a mistake on AI-generated art
I've generally been against giving AI works copyright, but this article presented what I felt were compelling arguments for why I might be wrong. What do you think?
The argument relies a lot on an analogy to photographers, which misunderstands the nature of photography. A photographer does not give their camera prompts and then evaluate the output.
A better analogy would be giving your camera to a passerby and asking them to take your photo, with prompts about what you want in the background, lighting, etc. No matter how detailed your instructions, you won't have a copyright on the photo.
A better analogy would be giving your camera to a passerby and asking them to take your photo, with prompts about what you want in the background, lighting, etc. No matter how detailed your instructions, you won’t have a copyright on the photo.
I like this analogy a lot.
"Prompts" are actually used a lot in creative circles, whether for art or writing. But no matter how specific you are when you write a prompt for, say, r/WritingPrompts (and some of them are incredibly specific due to posters literally having an idea and hoping someone else will write it for them), the resulting story will never be copyrighted to you.
A photographer does not give their camera prompts and then evaluate the output.
I understand what you're trying to say, but I think this will grow increasingly unclear as machines/software continue to play a larger and larger part of the creative process.
I think you can argue that photographers issue commands to their camera and then evaluate the output. Modern digital cameras have made photography almost a statistical exercise rather than a careful creative process. Photographers take hundreds and hundreds of shots and then evaluate which one was best.
Also, AI isn't some binary on/off. Most major software will begin incorporating AI assistant tools that will further muddy the waters. Is something AI generated if the artist added an extra inch of canvas to a photograph using photoshops new generative fill function so that the subject was better centered in the frame?
The copyright office has been pretty clear that if an artist is significantly involved in creating an image but then adjusts it with AI, or vice versa, then the work is still eligible for copyright.
In all of the cases where copyright was denied, the artist made no significant changes to AI output and/or provided the AI with nothing more than a prompt.
Photographers give commands to their camera just as a traditional artist gives commands in Photoshop. The results in both cases are completely predictable. This is where they diverge from AI-generated art.
I think the major difference that determines copywrightability is the amount of control the artist has on the outcome. If a photographer doesn't like the composition of a photo, there's a variety of things they can do to directly impact the photo (camera positioning/settings, moving the subjects, changing lighting, etc.), before it's even captured by the camera. If someone is generating a picture with AI and they don't like the composition of the image, there's nothing they can do directly impact what the output will be.
If you want a picture of an apple, where the apple is placed precisely at a certain spot in frame, a photographer can easily accomplish this, but someone using AI will have to generate the image over and over, hoping that the algorithm decides to eventually place the apple exactly in the desired spot
Many cameras these days have AI autofocus for subject detection. Phone cameras use AI image enhancemnnt by default.
No matter how detailed your instructions, you won’t have a copyright on the photo.
If you reach a certain threshold you'd be co-creator. AIs can't hold copyright, so in the analogous case you'd be sole copyright holder.
Take the movie industry and try to argue, as a camera operator, that the director has no rights at all to the video you shoot. I'm waiting.
In the movie industry, everyone usually signs a work for hire contract that specifies who will have the rights to the completed film.
However, in a recent case the director (Alex Merkin) did not sign a contract and then tried to claim copyright afterwards. The court said that directors have no inherent copyright over film:
We answer that question in the negative on the facts of the present case, finding that the Copyright Actʹs terms, structure, and history support the conclusion that Merkinʹs contributions to the film do not themselves constitute a ʺwork of authorshipʺ amenable to copyright protection. ... As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. ... But a directorʹs contribution to an integrated ʺwork of authorshipʺ such as a film is not itself a ʺwork of authorshipʺ subject to its own copyright protection.
There’s gaussian noise involved in many of photoshop’s brushes I’m pretty sure.
Does that make photoshop not a pure function of the user’s input, and hence incapable of producing anything copyrightable?
You need direct control over some elements of a work to claim copyright. Not necessarily all of them.
So even if the microtexture is out of your control, you still have complete control of the framing, color, etc. That's sufficient to claim copyright.
If you lose control of every element by replacing them all with prompts and/or chance, then you lose the copyright. Which is what happened in the "monkey selfie" photo.
There is literally no instance in which expanding the scope of copyright law is a good thing. Never.
I disagree with this reductionist argument. The article essentially states that because ai generation is the "exploration of latent space," and photography is also fundamentally the "exploration of latent space," that they are equivalent.
It disregards the intention of copywriting. The point isn't to protect the sanctity or spiritual core of art. The purpose is to protect the financial viability of art as a career. It is an acknowledgment that capitalism, if unregulated, would destroy art and make it impossible to pursue.
Ai stands to replace artist in a way which digital and photography never really did. Its not a medium, it is inference. As such, if copywrite was ever good to begin with, it should oppose ai until compromises are made.
If capitalism were unregulated you’d have anarchy and no copyright law whatsoever.
Doesn't this constitute capitalism destroying art? It's literally an attack on a method that actual artists are using in their art, trying to deny small creators the ability to expand their output independently.
You're saying you're concerned about AI replacing artists, but the people you're supporting taking tools away from are artists. Artists who are able to use AI to massively increase their productivity are able to create independent works in a much shorter time frame and with much fewer resources than before AI art.
AI art can't replace anything on its own. It needs actual artistic input and adjustments by an actual human being to consistently output anything that isn't garbage. What it can do is add tremendous detail and texture to hand drawn art in a much more efficient way, and create large amounts of assets for more involved projects much more cheaply and efficiently than otherwise.
The upshot is that the people who make things actually have enough resources to just make them without having to first do a little bowing and scraping and compromising their artistic vision. AI art takes independent creators with a reasonable ability to create assets for their projects and plops the equivalent of a moderately talented and well-funded art department into their laps for free or close to it.
No boards deciding the product isn't profitable or needs monetization, no feckless executives looking for somewhere to add 'input', basically nobody whose head is full of money getting in the way of making art.
That, to me, is a better world.
So like, if you're wanting to crusade against AI on behalf of independent creators, please don't. Please instead do empower us to not have to sell out our ideas in order to make them a reality.
I'm not anti ai, I use it generative ai all of the time, and I actually come from a family of professional artists myself ( though I am not ). I agree that its a tool which is useful; however, I disagree that it is not destructive or harmful to artist simply because it is most effective in thier hands.
you fail to recognize that possibility that I support ai but oppose its content being copywritable purely because firms would immediately utilize this to evade licensing work. Why pay top dollar for a career concept artist's vision when you can pay a starting liberal arts grad pennies to use Adobe suit to generate images trained in said concept artists?
Yes, that liberal arts grad deserves to get paid, but they also deserve any potential whatsoever of career advancement.
Now imagine instead if new laws required that generative ai license thier inputs in order to sell for profit? Sure, small generative ai would still scrape the Internet to produce art, but it would create a whole new avenue for artist to create and license art. Advanced generative ai may need smaller datasets, and small teams of artist may be able to utilize and license boutique models.
The strongest argument against AI art is that it is derivative of the copyrighted art it is based on. A photo of a copyrighted artwork would be similarly difficult to copyright. In this sense, AI art is more akin to music sampling in that it uses original material to make something new -- and to sample music you must ask permission.
You can't copyright AI-generated art even if it was only trained with images in the public domain.
In fact, you can't copyright AI-generated art even it was only trained with images that you made.
I think this nails it. It's probably the attack authors will use against OpenAI.
But the copyright office clearly states otherwise, so we're in for a showdown.
Personally, I think the AI stuff seems more akin to writing a book in the style of another author, which is completely legal. And, to be clear, my option has no legal effect here whatsoever. 😅
There are two separate issues here. First, can you copyright art that is completely AI-generated? The answer is no. So openAI cannot claim a copyright for its output, no matter how it was trained.
The other issue is if openAI violated a copyright. It's true that if you write a book in the style of another author, then you aren't violating copyright. And the same is true of openAI.
But that's not really what the openAI lawsuit alleges. The issue is not what it produces today, but how it was originally trained. The authors point out that in the process of training openAI, the developers illegally download their works. You can't illegally download copyrighted material, period. It doesn't matter what you do with it afterwards. And AI developers don't get a free pass.
Illegally downloading copyrighted books for pleasure reading is illegal. Illegally downloading copyrighted books for training an AI is equally illegal.
I bet you could build a machine that could recognize subject matter from photographs of it more feasibly than you could build a machine that recognized training data from output
Which works were sampled for this?
Derivative doesn't mean what you think it means. I recommend reading this article by Kit Walsh, a senior staff attorney at the EFF if you haven't already. The EFF is a digital rights group who most recently won a historic case: border guards now need a warrant to search your phone.
Here's an excerpt:
First, copyright law doesn’t prevent you from making factual observations about a work or copying the facts embodied in a work (this is called the “idea/expression distinction”). Rather, copyright forbids you from copying the work’s creative expression in a way that could substitute for the original, and from making “derivative works” when those works copy too much creative expression from the original.
Second, even if a person makes a copy or a derivative work, the use is not infringing if it is a “fair use.” Whether a use is fair depends on a number of factors, including the purpose of the use, the nature of the original work, how much is used, and potential harm to the market for the original work.
You should also read this open letter by artists that have been using generative AI for years, some for decades. I'd like to hear your thoughts.
This is the first actually decent article I've read on AI art. It absolutely covers my concerns and fits with my own experiences using the technology. A lot of this is stuff I've been saying, and it's nice to see that I'm not alone here.
AI art is not at all straight-forward and absolutely requires creative input in order to get something usable. Prompt engineering, to me, is itself a type of art. You may at times find that there's something you want AI to generate that it's actually quite good at, like old women playing cards around a table, but usually you're going to be looking for something it struggles with. This is when you need to be creative and inventive with prompts, thinking about things from the perspective of what's probably out there in abundance.
Recently I needed to make some rings for my upcoming Planescape-themed Conan Exiles server. I started out by asking NightCafe for rings and it output a bunch of useless junk. Using my brain, I realized it's probably much more likely that it'll have a reference point for 'wedding band', and then I'll have my ring shape and can work from there. This worked quite nicely and it started producing rings, but it was often shoving them half out of the picture as it tends to do. There are some negative prompts that sometimes help with this, but I have my own technique that I think works better.
My method for framing objects in AI art generators is to surround them with something. If you add 'surrounded by' and some other object that's slightly smaller than the object you need a clean shot of, usually you'll get your image of the whole thing. Which object you pick to surround your target object with makes all the difference.
In this particular case, I first tried to put the ring on a table surrounded by small dogs, but it got caught up in the dogs and forgot to render the ring. Eventually I landed on 'surrounded by berries', and that was the jackpot. I'm guessing this one was a good choice because of Christmas themed ads, because suddenly my pictures were all full of mistletoe blasted with the kind of bokeh you only see in jewelry ads and wedding photos. And within each shot, a nicely centered ring in half-decent focus.
Now this is where I got really lucky. During my 'surrounded by berries' iterations, the generator decided to do something weird. It put a bunch of tiny little purple berries along the outer surface of a ring, standing on its side. It was perfect. I took this iteration and used it as a base, feeding it back into NightCafe and decreasing the noise ratio down to like 20-40% while turning up the prompt weight a little and changing my prompt. Now instead of berries and wedding bands, I go back to my initial search for magic rings encrusted with glowing gems. And in one step, my berries are a gorgeous array of gemstones. A few iterations later, I have a couple of decent rings to bring into GIMP and do some work with.
After pathing out the rings, separating the gems, adjusting the colors, and creating a few iterations with different colored bands and gem stones for my different finalized options, I had my results. A little blurry, okay, but totally fine for an inventory item thumbnail. Looks gorgeous.
Personally, I've dipped my toes into all sorts of art. I write, I take pictures, I sing, I play around with painting, I've made animations, games, mods, videos, weird unpalatable noise music; if it's a method of creative expression I may not be particularly good at it but I've almost certainly tried some version of it. And to me, this feels like creative expression. It feels like art.
Working with AI art feels like trying to collaborate on a project with an alien robot. You're trying to take these presumptions that we have and figure out how to get a workable result from something that fundamentally doesn't understand any of it. It's this really fascinating exercise in exploring this almost dream-like logic that's heavily rooted in media consumption, and weirdly enough your own understanding of media culture can be a way of teasing out what you want.
I don't just go and say 'please give me one rabbit' and get a rabbit. It doesn't feel like handing the project off to another artist with some notes and coming back to see what they made, it feels like an actively creative process. It doesn't feel more creative when I'm editing those images than when I'm digging through this strange robot-logic dreamscape looking for them.
And like, given that I could literally just take a picture one of my own rings and edit that, I don't see how it's less mine via creative output. I bought the ring, I didn't spend an hour digging it out of a morass of nonsense.
Frankly, I care little about law and less about money. I'll make the things I'm inspired to make with the methods I'm inspired to make them with and we'll see what happens. Maybe I'll make something people like, maybe I'll cut my own ear off and die penniless, but the opinions of the copyright office on what legal claims I can make around my work aren't really a primary factor in that or in my decision making when it comes to art.
I do hope they'll read articles like these and talk to folks with similar perspectives and find a better take, though.
I'm really good at searching Google. I'm a "prompt engineer" too
Thank you for describing your process in such detail. I'm sorry if this is going to come off as overtly contrary; that's such an impersonal convoluted way to make an image. There are good illustrators out there that can sketch roughs and make a beautiful finished painting in a night, all right out of their head. Frank Frazetta would be laughing in his grave at AI art.
I am not a good illustrator though, but I'm good at working with AI and Photoshop. Using generated images as a base gives me the best quality in a reasonable time.
I'm pretty sure there are musicians who would roll in their graves at the thought of generating music in synthesizers, yet without we would have electronic music.
I'm in it to make stuff, not to impress you or any dead person. What are you making?
Just move to that one worker’s collective in Spain that worked for a little while.
The comparison between photography and AI generated images falls flat on its face when you think about it.
A camera requires not only human interaction, but going some place, setting up and having to process the image after the fact.
Contrast that with an AI farm constantly generating and squeezing out copyrightable material while scraping the web for any human made work it can emulate.
In the end what it will mean is that certain companies will be fuzzing the hell out of the copyright system to gain as much intellectual property as possible while diminishing the creative possibility of human beings.
It is in effect just a way to make companies richer and remove creative jobs from the market. Anybody who doesn't see that is naive.
BUT I think that in cases of that image you should be able to apply for copyright. But just automatically getting it, as is the law in many countries? No. That's a really bad idea.
Modern copyright sucks balls anyway
Copyright itself is weird.
That said, a simpler way to handle this would be that the image generator model is a tool. And it doesn't really matter if your input is through a paintbrush or a prompt in an image generator, you're responsible for that piece of content thus you have copyright over it.
You can further couple it with the argument @luciole@beehaw.org used, that AI art is derivative work, and claim that the authors of the works used to train the model shall have partial copyright over it too.
AI art is derivative work, and claim that the authors of the works used to train the model shall have partial copyright over it too.
To me this is a potential can of worms. Humans can study and mimic art from other humans. It's a fundamental part of the learning process.
My understanding of modern AI image generation is that it's much more advanced than something like music sampling, it's not just an advanced cut and paste machine mashing art works together. How would you ever determine how much of a particular artists training data was used in the output?
If I create my own unique image in Jackson Pollock's style I own the entirety of that copyright, with Pollock owning nothing, no matter that everyone would recognize the resemblance in style. Why is AI different?
It feels like expanding the definition of derivative works is more likely to result in companies going after real artists who mimic or are otherwise inspired by Disney/Pixar/etc and attempting to claim partial copyright rather than protecting real artists from AI ripoffs.
[Warning: IANAL] The problem is that you guys assume that those generator models are doing something remotely similar to humans studying and mimicking art from other humans. They don't; at the end of the day the comparison with music sampling is fairly apt, even if more or less complex it's still the same in spirit.
Furthermore from a legal standpoint a human being is considered an agent. Software is at the best seen as a tool (or even less), not as an agent.
Quantifying "how much" of a particular artist's training data was used in the output is hard even for music sampling. Or for painting, plenty works fall in a grey area between original and derivative.
It feels like expanding the definition of derivative works is more likely to result in companies going after real artists who mimic or are otherwise inspired by Disney/Pixar/etc and attempting to claim partial copyright rather than protecting real artists from AI ripoffs.
Following this reasoning (it'll get misused by the American media mafia), it's simply better off to get rid of copyright laws altogether, and then create another legal protection to artists both against the American mafia and people using image generators to create rip-offs.
To me this is a potential can of worms.
Copyright is absolutely a can of worms. It always has been.
But it does matter whether your input is a brush or a prompt.
If you physically paint something with a paintbrush, you have a copyright over your work.
If someone asks you to physically paint something by describing what they want, you still have copyright over the work. No matter how picky they are, no matter how many times they review your progress and tell you to start over. Their prompts do not allow them to claim copyright, because prompts in general are not sufficient to claim copyright.
You're ascribing full human intelligence and sentience to the AI tool by your example which I think is inaccurate. If I build a robot arm to move the paintbrush for me, I would have copyright. If make a program to move the robot arm based on various inputs I would have copyright. Current (effective) AIs prompts are closer to a rudimentary scripting rather than a casual conversation.
But it does matter whether your input is a brush or a prompt. // If you physically paint something with a paintbrush, you have a copyright over your work.
By "thus you have copyright over it", I'm saying that it should apply equally to both (paintbrush vs. image generator), not that it currently does.
The author of this opinion has a point, and that artist not getting ownership of works involving AI image generation is a consequence, but I like that it also discourages big studios from taking AI generated mishmash as a drop-in replacement for human produced artwork. If they used it some video generation program at this moment to replace strikers, there are grounds that the studios have no ownership of it.
Anyways, I think copyright law should be fully torn down and rebuilt to reasonable levels, so AI may be a good catalyst to achieve this vision of mine.
As an author, I say cut the term waaay down. 12 years plus the option for a 12-year one-time renewal.
Some will get screwed, but the entire populace will gain.
I'd been thinking recently that cutting the copyright term down to 20 years would be reasonable. So while 12 years feels a bit low to me, the optional 12 year renewal (taking it to 24 years in total) works just fine. You have my vote.
not supernatural beings
If God was real and literally came down and showed up at the copyright office, would they really deny him the rights to all creation?
I think that depends on His nationality and where the works were created. Does the US respect copyright claimed in countries that no longer exist (at least in the same form)?
This is going to be the kind of thing that builds resentment against humanity among AI persons. Of course the law will lag by perhaps a hundred years before recognizing them as persons, and more likely they’ll fix it themselves instead of waiting for us to fix it.
🤖 I'm a bot that provides automatic summaries for articles: ::: spoiler Click here to see the summary The ruling raised an important question: Was the issue just that Thaler should have listed himself, rather than his AI system, as the image's creator?
Then on September 5, the office rejected the copyright for Théâtre D'opéra Spatial, holding that it “was not the product of human authorship” because it had been created by the AI software Midjourney.
The nation’s highest court acknowledged that “ordinary” photographs may not merit copyright protection because they may be a “mere mechanical reproduction” of some scene.
So even though a mechanical process captured the image, it nevertheless reflected creative choices by the photographer, and therefore deserved copyright protection.
Or consider the time an Associated Press photographer, Mannie Garcia, snapped a photo of then-Sen. Barack Obama listening to George Clooney during a 2006 panel discussion.
Two years later, artist Shepard Fairey used Garcia’s photo as the basis for an illustration called “Obama Hope” that was ubiquitous during the 2008 presidential campaign.
Saved 81% of original text. :::
There is an error that many in the dispute are making...
Imagine that BORG-AI is an ai that was trained ONLY on GPL2 program-code...
Imagine that you use it to fill-in some functions in your codebase...
What sort of copyright-status should be on those??
I say they should be GPL2, and they should be considered derivative of the ENTIRE training-data-set.
That doesn't mean I think that the BORG-AI should be a copyright holder, though!
I'm saying that there should be a NEW category, between uncopyrighted & copyrighted, and that the training-sets need to be segregated by license, so that derivatives CAN know what their legal licensing-status is.
GPL2, GPL3, BSD, LGPL2, whatever... it needs to be consistent within the training-data-set, so that the derivative of THAT module/expert can be having the same license, see?
"Intellectual property" is a silly concept that only exists because under capitalism massive powerful corporations benefit if they can leverage the legal system to permeantly keep knowledge, innovation, and art behind a paywall, and people in society are dependent on monetary gain to survive.
We should, to the fullest extent of the law, make it such that proper credit is given to people who make things, but calling something "theft" when the person you're "stealing" from literally does not lose anything is asinine.
It's not actually called "theft" or "stealing", it's called "infringement" or "violation". Infringement is to intellectual property as trespassing is to real estate. The owners are still able to use their property, but their rights to it have nevertheless been violated.
Also, corporations cannot create intellectual property. They can only offer to buy it from the natural persons who created it. Without IP protection, creators would lose the only protections they have against corporations and other entrenched interests.
Imagine seeing all your family photos plastered on a McDonald's billboard, or in political ad for a candidate you despise. Imagine being told, "Sorry, you can't stop them from using your photos however they want". That's a world without IP protection.
right, but how often does that actually work out in people's favor, and how often does that benefit corporate interests with massive influence? how many musicians don't have the right to their own work because record companies dominate the music industry? how many artists working for large corporations are denied residuals because a condition of their work is that everything they produce is owned by their employer? writers? animators?
that's not even considering the ways in which corporations patent technologies that are the result of publicly funded research efforts. a great deal of pharmaceuticals would not be possible without massive public research grants, but the companies privatize the results of that research using the framework of intellectual property.
in theory, you're right, it does protect you against corporations using your shit without permission, but in practice it just stops you from using your shit without their permission. there are far better ways of ensuring corporations cannot exploit you than to make your creativity and invention a commodity to be bought and sold.
Serious question, when is intellectual property being pirated/stolen (pirating a movie for example), not cause the studio to lose something? You can say that person would've not watched it in the first place, but there's really no evidence suggesting that to be true, and plenty to the contrary. Things that want to be open for knowledge, like open source software or Wikipedia, are consenting to be open, which is in their license. It's not stealing from them because of their license, so why is it also not stealing when there is a license preventing them from doing so? I'm referring to a digital context btw, where pirating is glorified copy&paste over the internet and nothing is technically physically stolen.
I'm not sure of any evidence suggesting that piracy impacts the bottom line in a meaningful way. The piracy problem is primarily one of competition and innovation--people pay for things they find valuable and convenient, and if the barrier to payment is too high, they won't pay it.
Highly pirated movies tend to be the most successful, most profitable ones. I don't know of any high profile, highly regarded pieces of media that didn't earn their investment back purely because everyone pirated it instead of paying for it.
Some links you might find interesting: https://copia.is/library/the-carrot-or-the-stick/
https://www.techdirt.com/2023/09/22/eu-piracy-rates-tick-back-up-in-study-that-shows-income-inequality-and-less-legal-options-to-blame/
https://www.techdirt.com/2022/07/12/how-not-overly-enforcing-its-ip-universal-made-the-minions-ubiquitous-and-beloved/
That last one is an especially interesting case study, albeit a perhaps accidental one.
The key here is that as a business your objective isn't to capture every last dollar that you potentially could have if every single use of your IP was completely in your control--you want to make enough people want to pay you so that you can be profitable. Pirates are often just providing free marketing to someone that may or may not have ever heard of your product.
They lose remuneration for their work.
I share your sentiment, but I also defend the idea that we shouldn't let the biggest tech monopolies get away with making bank from other people's work and creations without their consent first. It's a bit like licenses in the open source world: it's not because I put code up there that I mean it to be used for closed source/commercial applications without compensation/consent (GPL), or I mean that, actually (MIT). Similarly, there are CC licenses (and alternatives) to navigate the field of creative works, and we should put Google, Facebook, Microsoft and others back at their place for completely shitting on that. And if the copyright law isn't the right tool for the job, then let's find it!