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It’s not about reconstruction, it’s about the notion of a “derivative work”. Translating a work would absolutely be derivative (consider the case of translating

It’s not about reconstruction, it’s about the notion of a “derivative work”. Translating a work would absolutely be derivative (consider the case of translating a literary work between languages: this is a classic example of a derivative work). Blurring a work but incorporating it would nonetheless still be derivative, I think. The challenge with these models is that they’ve clearly been trained on (exposed to) copyrighted material, and can also demonstrably reproduce elements of copyrighted works on demand. If they were humans, a court could deem the outputs copyright infringement, perhaps invoking the subconscious copying doctrine (https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2016-17/march-april/ghosts-hit-machine-musical-creation-doctrine-subconscious-copying/ https://www.americanbar.org/groups/intellectual_property_law...). Similarly, if a person uses a model to generate an infringing work, I suspect that person could be held liable for copyright infringement. Intention to infringe is not necessary in order to prove copyright infringement. The harder question is whether the models themselves constitute copyright infringement. Maybe there’s a Google Books-esque defense here? Hard to tell if it would work.

dTal 4y ago
> The challenge with these models is that they’ve clearly been trained on (exposed to) copyrighted material, and can also demonstrably reproduce elements of copyrighted works on demand. If they were humans, a court could deem the outputs copyright infringement, perhaps invoking the subconscious copying doctrine (https://www.americanbar.org/groups/intellectual_property_law https://www.americanbar.org/groups/intellectual_property_law...). Every single human has been exposed to copyrighted material, and probably can reproduce fragments of copyrighted material on demand. Nobody ever writes a book or paints a picture without reading a lot of books and looking at a lot of paintings first. For a "subconscious copying" suit to apply, you need to demonstrate "probative similarity" - that is, similarity to copyrighted material that is unlikely to be coincidental. In other words - it's not clear to me that the situation with AI is any different than with a human, or that it presents new legal challenges. If it looks new, it is new.
judge2020 4y ago
Note that a derivative work doesn't instantly make it 'fair use' for the purposes of copyright. You typically still need 'adaptation' permission from the copyright holder to made a derivative work of it, so you can't make 'Breaking Bad: The Musical' by recreating major scenes in a play format, at least not without substantially changing it[0]. For the purpose of fair use, copyright.gov has an informative section titled "About Fair Use" which details what sort of modifications and usage of a copyrighted work would be legal without any permission from the copyright holder https://www.copyright.gov/fair-use/#:~:text=a)(3).-,About%20Fair%20Use,-Fair%20use%20is https://www.copyright.gov/fair-use/#:~:text=a)(3).-,About%20... 0: https://en.wikipedia.org/wiki/Say_My_Name!_(Musical) https://en.wikipedia.org/wiki/Say_My_Name!_(Musical)
- CPLX 4y ago
  It’s the opposite of what you’re suggesting in the first sentence. Something being a derivative work is a fairly clear sign that it’s not fair use.
  - schoen 4y ago
    It's kind of a combination of these two positions: something being a derivative work means that it requires an excuse under copyright law, whether that be a license, or a fair use defense (which may be fact-specific), or some other justification. Without such a justification, the derivative work is treated as a copyright infringement. This is a result of 17 USC §106(2), which says that one of the things that "the owner of a copyright [...] has the exclusive rights to do and to authorize" is "to prepare derivative works based upon the copyrighted work", unless an exception (including fair use) applies. https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106
tobyjsullivan 4y ago
> If they were humans, a court could deem the outputs copyright infringement I'm not sure I understand how this is self-evident. The closest equivalent I can see would be a human who looks at many pieces of art to understand: - What is art and what is just scribbles or splatter? - What is good and what isn't? - What different styles are possible? Then the human goes and creates their own piece. It turns out, the legal solution is to evaluate each piece individually rather than the process. And, within that, the court has settled on "if it looks like a duck and it quacks like a duck..." which is where the subconscious copying presumably comes in. I don't know where courts will go. The new challenge is AI can generate "potentially infringing" work at a much higher rate than humans, but that's really about it. I'd be surprised if it gets treated materially different than human-created works.
- tobyjsullivan 4y ago
  It's worth pointing out that the problem, in this scenario, is for the creator (ie, the human running the algorithm). They will need to determine whether a piece might violate copyright before using it or selling it. That seems like a very hard problem, and could be the justification for more [new] blanket rules on the AI process.
  - Retric 4y ago
    Proving artwork you created is free from all copyright issues is similarly impossible, but in practice isn’t an issue. So, I don’t see any AI specific justification being relevant.
    - mr_toad 4y ago
      How common is it for an artist to accidentally generate a work that resembles an existing work?
      - Morgawr 4y ago
        I can't speak for digital art because I'm not an artist but I can say it's extremely common for original music to (often accidentally/subconsciously) include melodies or pieces of melodies from other music.
peoplefromibiza 4y ago
> consider the case of translating a literary work between languages: this is a classic example of a derivative work This is a classic example of "you need a license on the original material to sell it" (unless it is public domain) You need the rights also if you are translating from a pre existing translation in a different language (i.e. you're translating a Japanese book from the French authorized translation). Translating an opera is not automatically derivative work and does not fall under the umbrella of fair use. source: my sister is a professional translator EDIT: technically you'd need to acquire the rights even if you translate it by yourself, for fun, and show it to someone else.
not2b 4y ago
Yes, I expect that if you ask the model for "Getty images photo of [famous person] doing [thing Getty Images has only one photo of that person doing]" you might well get the original photo out.
- andybak 4y ago
  Should be easy to try. My guess is that it most likely won't.
  - not2b 4y ago
    You won't get the exact image, because the model doesn't perfectly memorize all inputs, but you'll likely get something so close that everyone would consider it a derivative work. This is very similar to getting Copilot to spit out Carnack's fast inverse square root code with the right prompt.
    - andybak 4y ago
      There's some interesting thought experiments around this: 1. You do the same thing but don't use "getty" in the prompt. 2. You do the same thing with "getty" in the prompt on a model NOT trained with Getty images 3. You ask a human photographer to do the same thing and you show him a Getty image 4. You ask a human photographer to do the same thing but without showing him a Getty image (but he's presumably seen many in the past). If 1 and 2 produce images that are also similar to a Getty image, where do we stand? I imagine it's likely that a trained model can learn "getty-like" without any actual Getty images to make 2 happen. And currently IP law treats humans and AIs the same (in the sense that infringment rules don't distinguish between them) so would you consider 3 and 4 to be similar to 1 and 2?
      - not2b 4y ago
        For 1, there's probably a case where a picture that exactly matches the prompt is very famous, so maybe the right prompt would manage to effectively select an image licensed by Getty. The GPLed fast inverse square root routine was an example of this kind of thing: one good match and the model finds it. Finding such a case might or might not be possible. For 2, you can't find what isn't there, so something random would come out. For 3 or 4, I suppose you could pay paparazzi to stalk the celebrity and try to produce a similar original shot, and this might be impossible depending on the prompt (for example, photo of [person] at [event] on [date]"), but if it's possible it has absolutely no resemblance to 1 or 2. The photographer would produce an original work, unless your #3 contractor tries to remove the watermark and pass off the Getty image as their own, which would be idiotic. There is no particular "Getty Images" style, other than their quality requirements, they are a huge company that acquires and licenses a ton of pro photography. There's no such thing as "getty-like". So, no, only option 1 might possibly produce a problematic derivative work.
karmasimida 4y ago
> If they were humans, a court could deem the outputs copyright infringement Why? I am a human, I can learn the composition of stock photos and use the idea in my work. There is no copyright infringement, or there is simply no way to prove it. The connection needs to be really strong to consider something as derivative work.
chii 4y ago
> Blurring a work but incorporating it would nonetheless still be derivative, I think. you have to show that the derivative work is a substantial part of the new work. If your background is a small portion of the new image, and the blue makes it difficult to see that it was the original, and that any other blurred image would've done the same job, then i would argue that the final new painting does not constitute a derivative work. A similar argument could be made for AI models. The model consists of billions of training images. None of these images are individually substantial in the final output, despite that on some part of the output, you can trace a derivative work. For example, if an author used 1 million books, and copied every nth word from each book and merged it, to produce a final book (which happens to produce a coherent book), i would argue that the author did not infringe copyright on any of the original 1million source books.
noduerme 4y ago
>> Translating a work would absolutely be derivative (consider the case of translating a literary work between languages: this is a classic example of a derivative work) True for literature, which can be copyrighted. Not true for logic. Code that performs the same function but is written independently can't, by definition, violate copyright. It could violate a patent, but it's much harder to patent code. However, in the AI case, the models themselves do nothing even approaching such translation. They fully incorporate what are essentially just compressed representations of existing works into their weights. I'd guess if any single copyright holder could show that their work could be substantially retrieved from the model with the right query string, they'd have a reasonable claim on royalties from the entire model, or else the whole model would have to be thrown out.

dTal 4y ago

> The challenge with these models is that they’ve clearly been trained on (exposed to) copyrighted material, and can also demonstrably reproduce elements of copyrighted works on demand. If they were humans, a court could deem the outputs copyright infringement, perhaps invoking the subconscious copying doctrine (https://www.americanbar.org/groups/intellectual_property_law https://www.americanbar.org/groups/intellectual_property_law...). Every single human has been exposed to copyrighted material, and probably can reproduce fragments of copyrighted material on demand. Nobody ever writes a book or paints a picture without reading a lot of books and looking at a lot of paintings first. For a "subconscious copying" suit to apply, you need to demonstrate "probative similarity" - that is, similarity to copyrighted material that is unlikely to be coincidental. In other words - it's not clear to me that the situation with AI is any different than with a human, or that it presents new legal challenges. If it looks new, it is new.

judge2020 4y ago

Note that a derivative work doesn't instantly make it 'fair use' for the purposes of copyright. You typically still need 'adaptation' permission from the copyright holder to made a derivative work of it, so you can't make 'Breaking Bad: The Musical' by recreating major scenes in a play format, at least not without substantially changing it[0]. For the purpose of fair use, copyright.gov has an informative section titled "About Fair Use" which details what sort of modifications and usage of a copyrighted work would be legal without any permission from the copyright holder https://www.copyright.gov/fair-use/#:~:text=a)(3).-,About%20Fair%20Use,-Fair%20use%20is https://www.copyright.gov/fair-use/#:~:text=a)(3).-,About%20... 0: https://en.wikipedia.org/wiki/Say_My_Name!_(Musical) https://en.wikipedia.org/wiki/Say_My_Name!_(Musical)

CPLX 4y ago
It’s the opposite of what you’re suggesting in the first sentence. Something being a derivative work is a fairly clear sign that it’s not fair use.
- schoen 4y ago
  It's kind of a combination of these two positions: something being a derivative work means that it requires an excuse under copyright law, whether that be a license, or a fair use defense (which may be fact-specific), or some other justification. Without such a justification, the derivative work is treated as a copyright infringement. This is a result of 17 USC §106(2), which says that one of the things that "the owner of a copyright [...] has the exclusive rights to do and to authorize" is "to prepare derivative works based upon the copyrighted work", unless an exception (including fair use) applies. https://www.law.cornell.edu/uscode/text/17/106 https://www.law.cornell.edu/uscode/text/17/106

tobyjsullivan 4y ago

> If they were humans, a court could deem the outputs copyright infringement I'm not sure I understand how this is self-evident. The closest equivalent I can see would be a human who looks at many pieces of art to understand: - What is art and what is just scribbles or splatter? - What is good and what isn't? - What different styles are possible? Then the human goes and creates their own piece. It turns out, the legal solution is to evaluate each piece individually rather than the process. And, within that, the court has settled on "if it looks like a duck and it quacks like a duck..." which is where the subconscious copying presumably comes in. I don't know where courts will go. The new challenge is AI can generate "potentially infringing" work at a much higher rate than humans, but that's really about it. I'd be surprised if it gets treated materially different than human-created works.

tobyjsullivan 4y ago
It's worth pointing out that the problem, in this scenario, is for the creator (ie, the human running the algorithm). They will need to determine whether a piece might violate copyright before using it or selling it. That seems like a very hard problem, and could be the justification for more [new] blanket rules on the AI process.
- Retric 4y ago
  Proving artwork you created is free from all copyright issues is similarly impossible, but in practice isn’t an issue. So, I don’t see any AI specific justification being relevant.
  - mr_toad 4y ago
    How common is it for an artist to accidentally generate a work that resembles an existing work?
    - Morgawr 4y ago
      I can't speak for digital art because I'm not an artist but I can say it's extremely common for original music to (often accidentally/subconsciously) include melodies or pieces of melodies from other music.

peoplefromibiza 4y ago

> consider the case of translating a literary work between languages: this is a classic example of a derivative work This is a classic example of "you need a license on the original material to sell it" (unless it is public domain) You need the rights also if you are translating from a pre existing translation in a different language (i.e. you're translating a Japanese book from the French authorized translation). Translating an opera is not automatically derivative work and does not fall under the umbrella of fair use. source: my sister is a professional translator EDIT: technically you'd need to acquire the rights even if you translate it by yourself, for fun, and show it to someone else.

not2b 4y ago

Yes, I expect that if you ask the model for "Getty images photo of [famous person] doing [thing Getty Images has only one photo of that person doing]" you might well get the original photo out.

andybak 4y ago
Should be easy to try. My guess is that it most likely won't.
- not2b 4y ago
  You won't get the exact image, because the model doesn't perfectly memorize all inputs, but you'll likely get something so close that everyone would consider it a derivative work. This is very similar to getting Copilot to spit out Carnack's fast inverse square root code with the right prompt.
  - andybak 4y ago
    There's some interesting thought experiments around this: 1. You do the same thing but don't use "getty" in the prompt. 2. You do the same thing with "getty" in the prompt on a model NOT trained with Getty images 3. You ask a human photographer to do the same thing and you show him a Getty image 4. You ask a human photographer to do the same thing but without showing him a Getty image (but he's presumably seen many in the past). If 1 and 2 produce images that are also similar to a Getty image, where do we stand? I imagine it's likely that a trained model can learn "getty-like" without any actual Getty images to make 2 happen. And currently IP law treats humans and AIs the same (in the sense that infringment rules don't distinguish between them) so would you consider 3 and 4 to be similar to 1 and 2?
    - not2b 4y ago
      For 1, there's probably a case where a picture that exactly matches the prompt is very famous, so maybe the right prompt would manage to effectively select an image licensed by Getty. The GPLed fast inverse square root routine was an example of this kind of thing: one good match and the model finds it. Finding such a case might or might not be possible. For 2, you can't find what isn't there, so something random would come out. For 3 or 4, I suppose you could pay paparazzi to stalk the celebrity and try to produce a similar original shot, and this might be impossible depending on the prompt (for example, photo of [person] at [event] on [date]"), but if it's possible it has absolutely no resemblance to 1 or 2. The photographer would produce an original work, unless your #3 contractor tries to remove the watermark and pass off the Getty image as their own, which would be idiotic. There is no particular "Getty Images" style, other than their quality requirements, they are a huge company that acquires and licenses a ton of pro photography. There's no such thing as "getty-like". So, no, only option 1 might possibly produce a problematic derivative work.

karmasimida 4y ago

> If they were humans, a court could deem the outputs copyright infringement Why? I am a human, I can learn the composition of stock photos and use the idea in my work. There is no copyright infringement, or there is simply no way to prove it. The connection needs to be really strong to consider something as derivative work.

chii 4y ago

> Blurring a work but incorporating it would nonetheless still be derivative, I think. you have to show that the derivative work is a substantial part of the new work. If your background is a small portion of the new image, and the blue makes it difficult to see that it was the original, and that any other blurred image would've done the same job, then i would argue that the final new painting does not constitute a derivative work. A similar argument could be made for AI models. The model consists of billions of training images. None of these images are individually substantial in the final output, despite that on some part of the output, you can trace a derivative work. For example, if an author used 1 million books, and copied every nth word from each book and merged it, to produce a final book (which happens to produce a coherent book), i would argue that the author did not infringe copyright on any of the original 1million source books.

noduerme 4y ago

>> Translating a work would absolutely be derivative (consider the case of translating a literary work between languages: this is a classic example of a derivative work) True for literature, which can be copyrighted. Not true for logic. Code that performs the same function but is written independently can't, by definition, violate copyright. It could violate a patent, but it's much harder to patent code. However, in the AI case, the models themselves do nothing even approaching such translation. They fully incorporate what are essentially just compressed representations of existing works into their weights. I'd guess if any single copyright holder could show that their work could be substantially retrieved from the model with the right query string, they'd have a reasonable claim on royalties from the entire model, or else the whole model would have to be thrown out.