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AI-assisted art – A mixed decision from the copyright office

36 points by VanL 4y ago

fwlr 4y ago
It is so unusual to see clear and precise analysis on this topic. I particularly appreciate this turn of phrase, describing what Stable Diffusion does: “pull from an artist-chosen place in its massive table of probabilities to drive the generation of an image.”
- wokwokwok 4y ago
  Yes, but I mean it's also wrong... That's not how the diffusion process works. You can pick any number of interesting ways to describe it but if they're technically wrong, it doesn't really matter how poetic they are right? Diffusion models do use random noise. As I understand it, every 'step' is composed of three parts: a) the previous output, b) the latent generated from the prompt and c) random noise. As you move further up, the scheduler changes the weights of a, b, and c that get mixed in. ...but from the article: > The subtle error comes in a misunderstanding about the "randomly generated noise." It's not an error. You're just focusing on what you want to focus on. Let's be 100% blunt: The author of an AI art image is pressing the random generator button. Every time. The output is random. It's not a matter of debate; the initial seed to the diffusion model is random noise. The prompt guides the diffusion process, which basically denoises the random noise added to the image certainly... but saying there's no random component to it is completely and utterly wrong.
  - fwlr 4y ago
    The sentence you quote is the beginning of a paragraph that ends with “There is random noise, but the visual layer evolves the final image from the noise based upon the latent ’meaning’ in the prompt”… which is in complete agreement with what you’re saying? It certainly isn’t saying diffusion models don’t use random noise. It has the phrase “there is random noise”, that is just wholly incompatible with that claim. Perhaps that first sentence could be more precise, but by the end of the paragraph the author’s meaning is clear: the court has a misunderstanding about the “randomly generated noise” when it believes there is randomly generated noise in both the pixel and the latent - this is not the case, there is no randomness in the latent, that exact handcrafted prompt picks out a precise spot in the model’s giant table of embeddings, that prompt will always pick out that spot in that model, and the random noise is only on the pixel side of things. The author believes the court has this misunderstanding because the court uses the analogy of “a patron makes a suggestion to an artist”, which is a scenario that DOES have random noise involved in producing the latent (the brain is an inherently noise place; an artist’s brain likely even more so).
    - wokwokwok 4y ago
      > the court has a misunderstanding about the “randomly generated noise” when it believes there is randomly generated noise in both the pixel and the latent - this is not the case, there is no randomness in the latent No. This is factually incorrect. The random noise is applied in the latent. The VAE doesn’t add random shit when you convert to pixel space. Having randomness in pixel space would make no sense at all. You don’t ever pick a deterministic point in the latent space (unless you fix the seed to the random number generator, and then you're still picking a random point in the latent space, unless you're prepared to argue you somehow know what a specific seed is going to do before you use it... you're just saving the point for later). Ultimately, it comes down to this: - You have a function that generates a bunch of random images. - You pick one. Did you create the image? No. You didn't. Did you apply creativity? Should it be copyrightable? Maybe? You picked the one you liked most out of a set. You certainly applied your sense of aesthetics. The practical question is: What stops someone generating every possible image and copyrighting it? Sorry! I know you typed that prompt out and got a random seed, but it turns out I've actually copyrighted every image for that prompt for seeds 200000000 - 300000000. It's only a 100 million images. Easy. Right? Who cares if it's random or not? (I do, pedantically, it is), but practically, the copyright office doesn't care. They care about the practicality of preventing the system being abused. We can argue about the semantics of where the noise is applied, but it doesn't actually matter. How do you support people by letting them copyright their 'human scale' generated content, but avoid abuse from trolls who apply 'industrial scale copyrighting' with the same process?
  - Kim_Bruning 4y ago
    This is YC, so I get to be pedantic ;-) For stable diffusion, you can actually just set the seed to a fixed number. After that you can always get the exact same image for the exact same prompt.[1] In general, there are some interesting philosophical debates to be had about pseudo-random number generators. [1] YMMV: in some configurations you may still have other sources of noise.
yieldcrv 4y ago
someone should AI-assist their website layout, there are already a couple products for this.
mjr00 4y ago
> I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph. I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. Admittedly unlikely, but it could happen, and might eventually even be worth the GPU time depending on how popular AI artwork becomes (and how fast GPUs get). In any case, I don't see why the unaltered, or in this case extremely minorly altered, image output itself should be copyrightable. It's like two people going to Venice Beach to record the waves at the same time. They each have copyright over their specific recordings, but they can't copyright the sounds of the waves itself; the other person is free to do what they want with their own recording of the same sound. The same way that if you generate a Midjourney image with a specific prompt/seed, I should be able to use the same settings to generate the same image and do what I want with it.
- gwern 4y ago
  > I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. That seems extremely unlikely to make any sense given that the random seeds in question would be, what, FP32 or FP64 by default? So that's 4 billion random seeds per prompt. Better hope your GPUs are really cheap and you're targeting a really popular prompt+model+everything-else...
  - wokwokwok 4y ago
    Yes, but that’s the point isn’t it? Why not copyright them all? Sure, it’s irritating, and troll behaviour; but that’s literally what patent trolls do right?
    - gwern 4y ago
Reptur 4y ago
Did they award Copyright to Netflix's animation short "Dog and Boy"? I am curious to see how they treat the small proprietor vs the big corporation. Info: https://arstechnica.com/information-technology/2023/02/netflix-taps-ai-image-synthesis-for-background-art-in-the-dog-and-the-boy/ https://arstechnica.com/information-technology/2023/02/netfl...
- mjr00 4y ago
  There are significant differences between the cases; in that Netflix case, img2img was used to generate more details from scenes that were already fairly fleshed out and drawn. That process seems more analogous to running a picture through Photoshop filters. There's certainly a blurry line here, it's never going to be 100% cut and dry. I can copyright a figure drawing I do, but I can't copyright my drawing of a straight line. Maybe text-to-image can't be copyrighted, but image-to-image results can. Going to take a long while to resolve this.
- gwern 4y ago
  Wouldn't be a good comparison. They specifically agree she has copyright over the whole work+arrangement, so the short as a whole is 100% copyrighted. Netflix used AI for the background images, so those are the only parts that might be public domain, but you also don't know how heavily edited or modified by hand the backgrounds are (and realistically, they probably were a lot); this would also grant a copyright (and they deny her the copyright on the grounds that all her edits to the images were trivial). So "Dog and Boy" is quite safe under their novel interpretation.
Normal_gaussian 4y ago
Is there an agenda or bias here on the side of the USCO? Perhaps taking an extreme anti-ai position allows them to flesh out their exact position (with time and reflection) and ensures they don't have to 'strip' copyright later (only grant it), which presumably would be contentious if payouts have occurred?
- kupopuffs 4y ago
  Well, being hard without any practical means of enforcing it leads to people not respecting the law. TBH I am not sure what to do here
andrekandre 4y ago
> First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human. if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and someone else also did, and we get exactly the same image or a totally different image, it doesnt matter does it? how does "elephant with blue skin" or any other prompt meet the criteria of 'modicum of creativity'? in the end, its the tool that is doing the heavy lifting and being able to copyright its output sounds against the spirit of copyright (allow a human to get proper compensation for their creative work and incentivize creativity) imo. is there something obvious i am missing?
- stale2002 4y ago
  > if the input is a prompt that anyone can write Pressing the button, on an already setup camera, is something that anyone can do as well, and they will get the exact same camera output as anyone else.
  - danShumway 4y ago
    To be clear, pressing a button is not copyrightable. The decision about where to take a picture, what settings to use, and how to take it is the creativity that grants the image copyright. There are various arguments about which parts of prompt generation and refinement might register as copyright and there are various arguments about how tuning settings and tuning prompts is similarly creative to using a camera, but the point is still that unless the user input is sufficiently creative, the image wouldn't get copyright. The button doesn't matter; the button is not what gives you copyright. In fact, numerous accidental photos have been denied copyright; most famously when PETA sued a photographer over a picture that was taken when a monkey stole the photographer's camera. The court's decision was that nobody owned the photo. It was an accident, it wasn't the result of a creative decision. There was not enough human creativity involved in the process of a monkey stealing a camera to warrant protection. Of course, it's somewhat of an oversimplification of prompt engineering to phrase it as just saying "elephant with blue skin", but if that was the entire creative input, it's not clear at all to me that someone saying "I want an image of an elephant with a blue skin" is a sufficiently creative input that it should be copyrightable. What the AI does with that prompt is irrelevant, it's the human creativity that matters. Same with photography; the camera isn't really the important part. The machine isn't what is generating the copyright. The person making a conscious decision about where to stand, what settings to use, and when to press the button is viewed by the law as a creative act that requires creative skill and execution. The button press itself doesn't matter. Again, to be clear, prompt generation tends to be oversimplified in these conversations and I'm not saying there's definitely nothing creative happening, but if we take that simplified version of prompt generation at face value, then just saying what image you want... does that really meet a creative standard? Because saying that descriptions/requests on their own are sufficiently creative for copyright protection has implications far beyond AI art; it implies that commissioning a piece of artwork even from a human being should be enough of a creative act that I should get joint copyright over the final image. If the argument is that prompt generation is more than that, and that it takes more skill, then fine -- but if the argument is that even just a one line description of what image you want should be counted as creative... yeah, that's a pretty significant expansion of copyright that will affect a lot more than just AI art. --- Edit: I think people also get a little confused about the difference between how people generally treat photography and what the law would decide if the copyright on every single image was challenged. If I set up a camera mounted to a pole, focused on a static scene, and you walk over and press the button on the camera, legally you very likely don't have any copyright over that image. But practically, nobody is going to challenge you over it. It's possible that some of the photographs where people say, "well that gets copyright, why doesn't mine?" might not actually get copyright if they were ever challenged. But people generally don't challenge copyright status in the first place. Recipes, APIs, monkeys, (and apparently now AI images) are the rare exceptions.
natch 4y ago
Very odd to read such a writeup that while seemingly pretty comprehensive, nevertheless completely misses mentioning of alternative tools like InvokeAI (yet another wrapper around Stable Diffusion) that allow, at least in the web GUI version, significantly more granular control over the output by the human artist. Good article, but the landscape is a lot bigger than what this article would suggest. And, even more obviously, constantly growing.
xp84 4y ago
I don't know how I feel about the main question of AI copyright-ability*, but do disagree with the idea that if the outputs of a tool used by the artist are very random, it means the end product is not creativity. The Jackson Pollack example cited in the article is apt. Lots of artists use randomness-infused techniques, and select their final product from among many random versions based on what came out the best. *However I am pretty confident that the result will eventually land on "Works created by big media companies, even done entirely using AI, are fully copyrightable."
yegortk 4y ago
I think this is most significantly a policy issue. Under the existing US law, minor human input could be enough to make AI copyrightable through the "modicum of creativity" argument. However, if this allows for massive amounts of content to be generated (semi-)automatically in much shorter amount of time and with much less effort than what was possible before, it seems strict and generous copyright protections granted to creators of such works by society through the current law are no longer really warranted. In the end, copyright exists to provide motivating reward for creative effort - if such reward is no longer really necessary to enable close-to-infinite creative image generation, the law really may need to be altered to prevent copyright trolls and other nastiness of that nature.
- wisemanwillhear 4y ago
  If I spend little more than a second framing a picture with my camera, which is less than the time and effort that it would take me to type in a prompt for an AI, does that mean I haven't put in enough effort to have a copyright for my photo? It feels like we need some distinction that's a little more qualitative than quantitative.
williamcotton 4y ago
So just don’t tell anyone what tools were used and you get a copyright?
danShumway 4y ago
What's the argument for why prompt generation deserves copyright protection that doesn't also imply that commissioning a piece of artwork deserves copyright protection? If I go to a human and ask them to draw me an image, I will iterate and collaborate with my prompt just as much if not more than I would for an AI generated image. I'll look through multiple pictures and point out things I like and dislike. But I won't get joint copyright over the final image unless the artist gives me a contract assigning it. We recognize that collaboration with a human to describe a final image isn't something that usually falls in the narrow range of copyright. So the argument around prompt generation seems like it has much wider implications than most copyright-expansionists are saying. I don't understand how to grant AI images copyright without granting a bunch of other stuff copyright too. And traditionally, we don't think of commissioning as a copyrightable act, even though it arguably has very similar elements of creativity that are being talked about here. Is there a creative human input into an AI-generated image that isn't present when commissioning or working with a human artist? Because otherwise we're talking about a frankly massive expansion of copyright that should probably be approached with a lot more caution. I mean, some of these arguments I see for granting copyright are getting really close to outright saying that deciding what to draw should be treated as creative enough to warrant protection. That's a wild thing to say, that has so many implications beyond just AI images.
- deleted 4y ago
  [deleted]
- jay_kyburz 4y ago
  I always assumed that Midjourney, the company running the application, owns the copyright (if there was any) and that they assign it to you when they hand you back the image. The website is fairly circumspect around the whole issue as you can imagine. It's not that different to a company paying artists.
  - danShumway 4y ago
    > I always assumed that Midjourney, the company running the application, owns the copyright In a way that's even worse; building a tool that someone else uses to produce a creative work shouldn't grant the original builder copyright over the user's output. That would also have a ton of implications beyond AI. It's bad enough that many software tools come with license agreements around their usage that reassigns copyright and restricts output, but at least in those cases the agreement rests on a license that the user is signing to get access to the tool. But we wouldn't claim that the person who's made an artist's paints owns the painting made with them. > The website is fairly circumspect around the whole issue as you can imagine. I remember it making the news when one of the companies in the imagegen space (I don't think it was Midjourney, but it might have been) said that users would keep copyright on images they made, and I remember similarly thinking at the time, "well, that's very nice of you but I'm pretty sure that's not your decision to make." But agreed, I think that the company is probably not going to go out of their way to really clarify how much IP control they think they have over what other people do with their tool. ---- There's implications beyond AI to saying that AI images are copyrightable, but I think they're small potatoes compared to the implications of saying that inventions confer copyright of artwork made with inventions back to the inventor, even if someone else was using the invention to create the artwork. When studios pay artists, they don't get copyright, the artist does. The studio gets copyright if they think ahead and make the artist sign a contract to assign their copyright over. And negotiation over assigning copyright is part of the payment process and contract process, the studio doesn't get that for free.
matt3210 4y ago
Just don't say they're AI generated
__loam 4y ago
I hope all these AI companies get their asses handed to them by the courts. The amount of uncompensated labor required to build these systems is totally staggering.
- ROTMetro 4y ago
  Agree, but you'll get downvoted here for saying it. But then you'd get a nice collection of downvotes here previously just for pointing out that this was the legal outcome that was coming as if copyright law either didn't exist and wasn't flushed out before AI or somehow didn't ally. It's like all the 'Politicians and judges don't understand der interwebs' people then saying 'Section 230 (created by politicians and upheld by judges) is vitally important to der interwebs and must be protect from politicians and judges'.
jay_kyburz 4y ago
How about this for a completely new take on copyright. The amount of money you can make via copyright protection should be in direct correlation to the amount of effort that went into generating the creative work. If you type a prompt into a machine and it spits out an image. 30 seconds of work, copyright will protect you until you have made a reasonable profit for your time. If a movie company puts 10000 person months into a big blockbuster, copyright will protect them until the move has made a reasonable profit. If you choose never to monetize an artwork, it remains in copyright for the maximum time. I have no idea how you would value a photographer being in the right place at the right time.
ROTMetro 4y ago
If I ask Bob R to paint me a picture of a fish wearing a small yellow hat I don't own copyright to the results just because I gave the original prompt.

36 points by VanL 4y ago

fwlr 4y ago

It is so unusual to see clear and precise analysis on this topic. I particularly appreciate this turn of phrase, describing what Stable Diffusion does: “pull from an artist-chosen place in its massive table of probabilities to drive the generation of an image.”

wokwokwok 4y ago
Yes, but I mean it's also wrong... That's not how the diffusion process works. You can pick any number of interesting ways to describe it but if they're technically wrong, it doesn't really matter how poetic they are right? Diffusion models do use random noise. As I understand it, every 'step' is composed of three parts: a) the previous output, b) the latent generated from the prompt and c) random noise. As you move further up, the scheduler changes the weights of a, b, and c that get mixed in. ...but from the article: > The subtle error comes in a misunderstanding about the "randomly generated noise." It's not an error. You're just focusing on what you want to focus on. Let's be 100% blunt: The author of an AI art image is pressing the random generator button. Every time. The output is random. It's not a matter of debate; the initial seed to the diffusion model is random noise. The prompt guides the diffusion process, which basically denoises the random noise added to the image certainly... but saying there's no random component to it is completely and utterly wrong.
- fwlr 4y ago
  The sentence you quote is the beginning of a paragraph that ends with “There is random noise, but the visual layer evolves the final image from the noise based upon the latent ’meaning’ in the prompt”… which is in complete agreement with what you’re saying? It certainly isn’t saying diffusion models don’t use random noise. It has the phrase “there is random noise”, that is just wholly incompatible with that claim. Perhaps that first sentence could be more precise, but by the end of the paragraph the author’s meaning is clear: the court has a misunderstanding about the “randomly generated noise” when it believes there is randomly generated noise in both the pixel and the latent - this is not the case, there is no randomness in the latent, that exact handcrafted prompt picks out a precise spot in the model’s giant table of embeddings, that prompt will always pick out that spot in that model, and the random noise is only on the pixel side of things. The author believes the court has this misunderstanding because the court uses the analogy of “a patron makes a suggestion to an artist”, which is a scenario that DOES have random noise involved in producing the latent (the brain is an inherently noise place; an artist’s brain likely even more so).
  - wokwokwok 4y ago
    > the court has a misunderstanding about the “randomly generated noise” when it believes there is randomly generated noise in both the pixel and the latent - this is not the case, there is no randomness in the latent No. This is factually incorrect. The random noise is applied in the latent. The VAE doesn’t add random shit when you convert to pixel space. Having randomness in pixel space would make no sense at all. You don’t ever pick a deterministic point in the latent space (unless you fix the seed to the random number generator, and then you're still picking a random point in the latent space, unless you're prepared to argue you somehow know what a specific seed is going to do before you use it... you're just saving the point for later). Ultimately, it comes down to this: - You have a function that generates a bunch of random images. - You pick one. Did you create the image? No. You didn't. Did you apply creativity? Should it be copyrightable? Maybe? You picked the one you liked most out of a set. You certainly applied your sense of aesthetics. The practical question is: What stops someone generating every possible image and copyrighting it? Sorry! I know you typed that prompt out and got a random seed, but it turns out I've actually copyrighted every image for that prompt for seeds 200000000 - 300000000. It's only a 100 million images. Easy. Right? Who cares if it's random or not? (I do, pedantically, it is), but practically, the copyright office doesn't care. They care about the practicality of preventing the system being abused. We can argue about the semantics of where the noise is applied, but it doesn't actually matter. How do you support people by letting them copyright their 'human scale' generated content, but avoid abuse from trolls who apply 'industrial scale copyrighting' with the same process?
- Kim_Bruning 4y ago
  This is YC, so I get to be pedantic ;-) For stable diffusion, you can actually just set the seed to a fixed number. After that you can always get the exact same image for the exact same prompt.[1] In general, there are some interesting philosophical debates to be had about pseudo-random number generators. [1] YMMV: in some configurations you may still have other sources of noise.

yieldcrv 4y ago

someone should AI-assist their website layout, there are already a couple products for this.

mjr00 4y ago

> I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph. I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. Admittedly unlikely, but it could happen, and might eventually even be worth the GPU time depending on how popular AI artwork becomes (and how fast GPUs get). In any case, I don't see why the unaltered, or in this case extremely minorly altered, image output itself should be copyrightable. It's like two people going to Venice Beach to record the waves at the same time. They each have copyright over their specific recordings, but they can't copyright the sounds of the waves itself; the other person is free to do what they want with their own recording of the same sound. The same way that if you generate a Midjourney image with a specific prompt/seed, I should be able to use the same settings to generate the same image and do what I want with it.

gwern 4y ago
> I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. That seems extremely unlikely to make any sense given that the random seeds in question would be, what, FP32 or FP64 by default? So that's 4 billion random seeds per prompt. Better hope your GPUs are really cheap and you're targeting a really popular prompt+model+everything-else...
- wokwokwok 4y ago
  Yes, but that’s the point isn’t it? Why not copyright them all? Sure, it’s irritating, and troll behaviour; but that’s literally what patent trolls do right?
  - gwern 4y ago

Reptur 4y ago

Did they award Copyright to Netflix's animation short "Dog and Boy"? I am curious to see how they treat the small proprietor vs the big corporation. Info: https://arstechnica.com/information-technology/2023/02/netflix-taps-ai-image-synthesis-for-background-art-in-the-dog-and-the-boy/ https://arstechnica.com/information-technology/2023/02/netfl...

mjr00 4y ago
There are significant differences between the cases; in that Netflix case, img2img was used to generate more details from scenes that were already fairly fleshed out and drawn. That process seems more analogous to running a picture through Photoshop filters. There's certainly a blurry line here, it's never going to be 100% cut and dry. I can copyright a figure drawing I do, but I can't copyright my drawing of a straight line. Maybe text-to-image can't be copyrighted, but image-to-image results can. Going to take a long while to resolve this.
gwern 4y ago
Wouldn't be a good comparison. They specifically agree she has copyright over the whole work+arrangement, so the short as a whole is 100% copyrighted. Netflix used AI for the background images, so those are the only parts that might be public domain, but you also don't know how heavily edited or modified by hand the backgrounds are (and realistically, they probably were a lot); this would also grant a copyright (and they deny her the copyright on the grounds that all her edits to the images were trivial). So "Dog and Boy" is quite safe under their novel interpretation.

Normal_gaussian 4y ago

Is there an agenda or bias here on the side of the USCO? Perhaps taking an extreme anti-ai position allows them to flesh out their exact position (with time and reflection) and ensures they don't have to 'strip' copyright later (only grant it), which presumably would be contentious if payouts have occurred?

kupopuffs 4y ago
Well, being hard without any practical means of enforcing it leads to people not respecting the law. TBH I am not sure what to do here

andrekandre 4y ago

> First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human. if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and someone else also did, and we get exactly the same image or a totally different image, it doesnt matter does it? how does "elephant with blue skin" or any other prompt meet the criteria of 'modicum of creativity'? in the end, its the tool that is doing the heavy lifting and being able to copyright its output sounds against the spirit of copyright (allow a human to get proper compensation for their creative work and incentivize creativity) imo. is there something obvious i am missing?

stale2002 4y ago
> if the input is a prompt that anyone can write Pressing the button, on an already setup camera, is something that anyone can do as well, and they will get the exact same camera output as anyone else.
- danShumway 4y ago
  To be clear, pressing a button is not copyrightable. The decision about where to take a picture, what settings to use, and how to take it is the creativity that grants the image copyright. There are various arguments about which parts of prompt generation and refinement might register as copyright and there are various arguments about how tuning settings and tuning prompts is similarly creative to using a camera, but the point is still that unless the user input is sufficiently creative, the image wouldn't get copyright. The button doesn't matter; the button is not what gives you copyright. In fact, numerous accidental photos have been denied copyright; most famously when PETA sued a photographer over a picture that was taken when a monkey stole the photographer's camera. The court's decision was that nobody owned the photo. It was an accident, it wasn't the result of a creative decision. There was not enough human creativity involved in the process of a monkey stealing a camera to warrant protection. Of course, it's somewhat of an oversimplification of prompt engineering to phrase it as just saying "elephant with blue skin", but if that was the entire creative input, it's not clear at all to me that someone saying "I want an image of an elephant with a blue skin" is a sufficiently creative input that it should be copyrightable. What the AI does with that prompt is irrelevant, it's the human creativity that matters. Same with photography; the camera isn't really the important part. The machine isn't what is generating the copyright. The person making a conscious decision about where to stand, what settings to use, and when to press the button is viewed by the law as a creative act that requires creative skill and execution. The button press itself doesn't matter. Again, to be clear, prompt generation tends to be oversimplified in these conversations and I'm not saying there's definitely nothing creative happening, but if we take that simplified version of prompt generation at face value, then just saying what image you want... does that really meet a creative standard? Because saying that descriptions/requests on their own are sufficiently creative for copyright protection has implications far beyond AI art; it implies that commissioning a piece of artwork even from a human being should be enough of a creative act that I should get joint copyright over the final image. If the argument is that prompt generation is more than that, and that it takes more skill, then fine -- but if the argument is that even just a one line description of what image you want should be counted as creative... yeah, that's a pretty significant expansion of copyright that will affect a lot more than just AI art. --- Edit: I think people also get a little confused about the difference between how people generally treat photography and what the law would decide if the copyright on every single image was challenged. If I set up a camera mounted to a pole, focused on a static scene, and you walk over and press the button on the camera, legally you very likely don't have any copyright over that image. But practically, nobody is going to challenge you over it. It's possible that some of the photographs where people say, "well that gets copyright, why doesn't mine?" might not actually get copyright if they were ever challenged. But people generally don't challenge copyright status in the first place. Recipes, APIs, monkeys, (and apparently now AI images) are the rare exceptions.

natch 4y ago

Very odd to read such a writeup that while seemingly pretty comprehensive, nevertheless completely misses mentioning of alternative tools like InvokeAI (yet another wrapper around Stable Diffusion) that allow, at least in the web GUI version, significantly more granular control over the output by the human artist. Good article, but the landscape is a lot bigger than what this article would suggest. And, even more obviously, constantly growing.

xp84 4y ago

I don't know how I feel about the main question of AI copyright-ability*, but do disagree with the idea that if the outputs of a tool used by the artist are very random, it means the end product is not creativity. The Jackson Pollack example cited in the article is apt. Lots of artists use randomness-infused techniques, and select their final product from among many random versions based on what came out the best. *However I am pretty confident that the result will eventually land on "Works created by big media companies, even done entirely using AI, are fully copyrightable."

yegortk 4y ago

I think this is most significantly a policy issue. Under the existing US law, minor human input could be enough to make AI copyrightable through the "modicum of creativity" argument. However, if this allows for massive amounts of content to be generated (semi-)automatically in much shorter amount of time and with much less effort than what was possible before, it seems strict and generous copyright protections granted to creators of such works by society through the current law are no longer really warranted. In the end, copyright exists to provide motivating reward for creative effort - if such reward is no longer really necessary to enable close-to-infinite creative image generation, the law really may need to be altered to prevent copyright trolls and other nastiness of that nature.

wisemanwillhear 4y ago
If I spend little more than a second framing a picture with my camera, which is less than the time and effort that it would take me to type in a prompt for an AI, does that mean I haven't put in enough effort to have a copyright for my photo? It feels like we need some distinction that's a little more qualitative than quantitative.

williamcotton 4y ago

So just don’t tell anyone what tools were used and you get a copyright?

danShumway 4y ago

What's the argument for why prompt generation deserves copyright protection that doesn't also imply that commissioning a piece of artwork deserves copyright protection? If I go to a human and ask them to draw me an image, I will iterate and collaborate with my prompt just as much if not more than I would for an AI generated image. I'll look through multiple pictures and point out things I like and dislike. But I won't get joint copyright over the final image unless the artist gives me a contract assigning it. We recognize that collaboration with a human to describe a final image isn't something that usually falls in the narrow range of copyright. So the argument around prompt generation seems like it has much wider implications than most copyright-expansionists are saying. I don't understand how to grant AI images copyright without granting a bunch of other stuff copyright too. And traditionally, we don't think of commissioning as a copyrightable act, even though it arguably has very similar elements of creativity that are being talked about here. Is there a creative human input into an AI-generated image that isn't present when commissioning or working with a human artist? Because otherwise we're talking about a frankly massive expansion of copyright that should probably be approached with a lot more caution. I mean, some of these arguments I see for granting copyright are getting really close to outright saying that deciding what to draw should be treated as creative enough to warrant protection. That's a wild thing to say, that has so many implications beyond just AI images.

deleted 4y ago
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jay_kyburz 4y ago
I always assumed that Midjourney, the company running the application, owns the copyright (if there was any) and that they assign it to you when they hand you back the image. The website is fairly circumspect around the whole issue as you can imagine. It's not that different to a company paying artists.
- danShumway 4y ago
  > I always assumed that Midjourney, the company running the application, owns the copyright In a way that's even worse; building a tool that someone else uses to produce a creative work shouldn't grant the original builder copyright over the user's output. That would also have a ton of implications beyond AI. It's bad enough that many software tools come with license agreements around their usage that reassigns copyright and restricts output, but at least in those cases the agreement rests on a license that the user is signing to get access to the tool. But we wouldn't claim that the person who's made an artist's paints owns the painting made with them. > The website is fairly circumspect around the whole issue as you can imagine. I remember it making the news when one of the companies in the imagegen space (I don't think it was Midjourney, but it might have been) said that users would keep copyright on images they made, and I remember similarly thinking at the time, "well, that's very nice of you but I'm pretty sure that's not your decision to make." But agreed, I think that the company is probably not going to go out of their way to really clarify how much IP control they think they have over what other people do with their tool. ---- There's implications beyond AI to saying that AI images are copyrightable, but I think they're small potatoes compared to the implications of saying that inventions confer copyright of artwork made with inventions back to the inventor, even if someone else was using the invention to create the artwork. When studios pay artists, they don't get copyright, the artist does. The studio gets copyright if they think ahead and make the artist sign a contract to assign their copyright over. And negotiation over assigning copyright is part of the payment process and contract process, the studio doesn't get that for free.

matt3210 4y ago

Just don't say they're AI generated

__loam 4y ago

I hope all these AI companies get their asses handed to them by the courts. The amount of uncompensated labor required to build these systems is totally staggering.

ROTMetro 4y ago
Agree, but you'll get downvoted here for saying it. But then you'd get a nice collection of downvotes here previously just for pointing out that this was the legal outcome that was coming as if copyright law either didn't exist and wasn't flushed out before AI or somehow didn't ally. It's like all the 'Politicians and judges don't understand der interwebs' people then saying 'Section 230 (created by politicians and upheld by judges) is vitally important to der interwebs and must be protect from politicians and judges'.

jay_kyburz 4y ago

How about this for a completely new take on copyright. The amount of money you can make via copyright protection should be in direct correlation to the amount of effort that went into generating the creative work. If you type a prompt into a machine and it spits out an image. 30 seconds of work, copyright will protect you until you have made a reasonable profit for your time. If a movie company puts 10000 person months into a big blockbuster, copyright will protect them until the move has made a reasonable profit. If you choose never to monetize an artwork, it remains in copyright for the maximum time. I have no idea how you would value a photographer being in the right place at the right time.

ROTMetro 4y ago

If I ask Bob R to paint me a picture of a fish wearing a small yellow hat I don't own copyright to the results just because I gave the original prompt.