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Your prompt for the AI image generation is copyrightable. The output is not. The photo you take involved choices of composition and timing and equipment choic

by kromem 3y ago

Your prompt for the AI image generation is copyrightable. The output is not. The photo you take involved choices of composition and timing and equipment choice. Just because you don't feel you put in a lot of consideration does not mean at a fundamental level that you still put in creative choices that give the resulting product copyright protection. But if you took that photo and put it into software which made a derivative image without human creativity, then while the original image would be copyrightable the resulting derivative output would not. The ideal path forward in copyright would be no infringement in use of materials for training and no protection in AI output with infringement possible against output too close/derivative of protected images. It's not infringement if you learned to draw tracing Mickey Mouse, your Gerry Gerbil cartoons are fine, but if you draw Mickey Mouse and distribute it, you'll hear from Disney's lawyers. AI should be the same with the exception that the Gerry Gerbil cartoons would not be copyrightable.

wizzwizz4 3y ago
> then while the original image would be copyrightable the resulting derivative output would not. Excellent! I'll put the Inheritance Cycle through a synonymiser, and have a copyright-free (if somewhat degraded) version. Take that, Christopher Paolini! … wait. What you say might well be correct: the law is often foolish. But I'd imagine the creativity-free derivative work still counts as a derivative work of the original, copyright-eligible work.
- chottocharaii 3y ago
  Yes it'd be a derivative work owned by Paolini. Paolini would have copyright to the derivative work, to the extent that he has rights over derivative material. However, the prompter would have nothing
  - wizzwizz4 3y ago
    If I write a poem and put it into Stable Diffusion, how is what is produced not a derivative work of my poem? We can argue that it's a derivative work of many other things, but that doesn't make it not a derivative work of the poem. One way it might not be is if Stable Diffusion is seem more like a hash algorithm than a synonymiser. But I don't see why it should, because there's a meaningful correspondence between the input and the output of the system.
kmeisthax 3y ago
If the prompt is copyrightable, then why wouldn't that copyright flow through to the output? I can't legally pirate Windows just because the source code was run through a compiler. Even though the compiler itself adds no additional creativity, the underlying source code is still a creative work[0], so pirating the binaries still infringes a copyright. Just one that's in a slightly different place than what we're normally used to thinking about. Just to drive the point home, there's a few other situations in which copyright "flows through" to things not subject to copyright. Back in the days of copyright formalities, if you published before properly registering something, your work would be born into the public domain. And this occasionally happened to serial media - e.g. someone might just forget to register the third season of a TV show. In that particular case[1], seasons one and two are still copyrighted, and because season three is a derivative work of the prior season, nobody but the original owner can actually make any use of season three. The only practical difference is that the company that owns that TV show lost one year of copyright ownership over the third season. [0] By definitions of law. I honestly think most software shouldn't have been made copyrightable, but once Congress said "software is copyrightable" that put that question to bed. [1] I don't remember the name of the TV show or the court case, but this IS a thing that happened and this theory IS court tested.
- Retric 3y ago
  In general if you pay someone to paint a picture they own the copyright and it needs to be assigned back to you even if you give them quite specific instructions. The instructions lacked sufficient control over the outcome to give some form of dual copyright. Presumably that general rule would also prevent your instructions to DALLE from giving you copyright ownership of the output either. The AI isn’t getting ownership, so it’s either in the public domain or a derivative work from the artists creating the training data.
  - kmeisthax 3y ago
    Right. And furthermore, I don't actually think prompts alone are copyrightable in most cases - I just wanted to propose an argumentum ad absurdum. Certainly, you can't argue creativity when you're also keyword-stuffing your prompts to call up various feature sets that the model just so happens to associate with them.
dllthomas 3y ago
> The photo you take involved choices of composition and timing and equipment choice. And the AI image involved choices of prompt and model, and subsequent selection from among several generated images. I recognize that what you said here: > Your prompt for the AI image generation is copyrightable. > The output is not. ... probably represents the state of the law at the moment (with meaningful amounts of uncertainty), but I don't think there's a principled difference based on the amount or nature of creativity involved. IMO the equivalent would be "you own the specification of (position, equipment, relevant world state) but not the photo" which obviously doesn't do anything we want for photography. And I guess that's a part of my point. We should pick the policy we want to make sure we capture the incentives we want. Maybe it is best that AI assisted art (past some point?) not be copyrightable. But I don't think basing the distinction on the amount or nature or... propagation (I guess?) of creativity makes any sense in distinguishing flippant and bullshit photographs (at least a third of my photos, although I would hesitate to apply the labels to any particular photo by someone else) from prompt-driven generative works.

by kromem 3y ago

wizzwizz4 3y ago

> then while the original image would be copyrightable the resulting derivative output would not. Excellent! I'll put the Inheritance Cycle through a synonymiser, and have a copyright-free (if somewhat degraded) version. Take that, Christopher Paolini! … wait. What you say might well be correct: the law is often foolish. But I'd imagine the creativity-free derivative work still counts as a derivative work of the original, copyright-eligible work.

chottocharaii 3y ago
Yes it'd be a derivative work owned by Paolini. Paolini would have copyright to the derivative work, to the extent that he has rights over derivative material. However, the prompter would have nothing
- wizzwizz4 3y ago
  If I write a poem and put it into Stable Diffusion, how is what is produced not a derivative work of my poem? We can argue that it's a derivative work of many other things, but that doesn't make it not a derivative work of the poem. One way it might not be is if Stable Diffusion is seem more like a hash algorithm than a synonymiser. But I don't see why it should, because there's a meaningful correspondence between the input and the output of the system.

kmeisthax 3y ago

If the prompt is copyrightable, then why wouldn't that copyright flow through to the output? I can't legally pirate Windows just because the source code was run through a compiler. Even though the compiler itself adds no additional creativity, the underlying source code is still a creative work[0], so pirating the binaries still infringes a copyright. Just one that's in a slightly different place than what we're normally used to thinking about. Just to drive the point home, there's a few other situations in which copyright "flows through" to things not subject to copyright. Back in the days of copyright formalities, if you published before properly registering something, your work would be born into the public domain. And this occasionally happened to serial media - e.g. someone might just forget to register the third season of a TV show. In that particular case[1], seasons one and two are still copyrighted, and because season three is a derivative work of the prior season, nobody but the original owner can actually make any use of season three. The only practical difference is that the company that owns that TV show lost one year of copyright ownership over the third season. [0] By definitions of law. I honestly think most software shouldn't have been made copyrightable, but once Congress said "software is copyrightable" that put that question to bed. [1] I don't remember the name of the TV show or the court case, but this IS a thing that happened and this theory IS court tested.

Retric 3y ago
In general if you pay someone to paint a picture they own the copyright and it needs to be assigned back to you even if you give them quite specific instructions. The instructions lacked sufficient control over the outcome to give some form of dual copyright. Presumably that general rule would also prevent your instructions to DALLE from giving you copyright ownership of the output either. The AI isn’t getting ownership, so it’s either in the public domain or a derivative work from the artists creating the training data.
- kmeisthax 3y ago
  Right. And furthermore, I don't actually think prompts alone are copyrightable in most cases - I just wanted to propose an argumentum ad absurdum. Certainly, you can't argue creativity when you're also keyword-stuffing your prompts to call up various feature sets that the model just so happens to associate with them.

dllthomas 3y ago

> The photo you take involved choices of composition and timing and equipment choice. And the AI image involved choices of prompt and model, and subsequent selection from among several generated images. I recognize that what you said here: > Your prompt for the AI image generation is copyrightable. > The output is not. ... probably represents the state of the law at the moment (with meaningful amounts of uncertainty), but I don't think there's a principled difference based on the amount or nature of creativity involved. IMO the equivalent would be "you own the specification of (position, equipment, relevant world state) but not the photo" which obviously doesn't do anything we want for photography. And I guess that's a part of my point. We should pick the policy we want to make sure we capture the incentives we want. Maybe it is best that AI assisted art (past some point?) not be copyrightable. But I don't think basing the distinction on the amount or nature or... propagation (I guess?) of creativity makes any sense in distinguishing flippant and bullshit photographs (at least a third of my photos, although I would hesitate to apply the labels to any particular photo by someone else) from prompt-driven generative works.