4 ms·

Interesante: so I would consider AI to be necessarily transformative. The idea is that the art it produces could never be a copy, because of the effect the rest

by juris 3y ago

Interesante: so I would consider AI to be necessarily transformative. The idea is that the art it produces could never be a copy, because of the effect the rest of its data corpus has on the output. There are several layers of transformation, feedback loops, etc. I don't know exactly how it all works (I'm not an AI engineer) so there's a lot of hand waving here. So to understand this: 1. In a world where someone owns the rights to the Mona Lisa, if I ask it to produce Mona Lisa as exactly as it can, and it produces the Mona Lisa (uncannily so, in layers of paint), can it be said to be a copy? Was there a violation? Or, per this ruling and by virtue of being produced by an AI, should that work be free to sell? 2. If I ask it to produce 'Mockey Mouse', and it produces a likeness uncannily approaching Mickey Mouse, should that work be free to sell without claims otherwise?

freejazz 3y ago
1. It's a copy. You described copying. You can't sell something that's a copy of another person's work (with some exceptions). That's the basic principle of copyright infringement. The ruling doesn't stand for the principle that anything created by an AI can be free to sell. It stands for the proposition that an AI can't obtain a copyright because it isn't a creative author. Can I sell homemade VHS copies of the Seinfeld DVDs? Should I be able to? 2. An AI can't obtain a copyright, so, assuming it's not a work that violates an existing copyright, it would not be copyrightable.
- juris 3y ago
  So! Here's my really dumb question: what is the difference between the two? I agree, in that first instance and at first glance, clearly copying. There are plenty of incredible copy artists in China who fabricate like copies of fine art, who approximate the role of our AI here. There might be something to be said later about the nature of what makes a work transformative and whether the use of an AI is sufficient for it, but setting that thought aside, let's slide the scale from the meatspace to the rasterized space. For the second: our mockey mouse is the spitting image of mickey mouse. Maybe the lines are a breadth of a hair off the fine print from what was submitted to the USPTO. Maybe it is by all intents and purposes using the same line width for his outlines, etc, but due to some fluke with how AI works, Mockey has three buttons instead of two, or (incredibly) 5 fingers instead of 4. Or maybe Mockey is exactly better proportioned than the cartoon friend we know, appealing more to our gross human sensibilities, but some may still construe him to be Mickey Mouse from a distance. That image can't be copyrighted (as an AI can't obtain a copyright). Disney can't claim that image as Mickey too, lest they claim every permutation of his characteristics possible, the territory of which is really large. Still, it stands to reasonable, common law: if its the 90s, and I drew Mockey myself and put him on a bag and made enough money on it that Disney goes after me, it's a sensible outcome that Disney wins this in court, and its primary defense is that this likeness violates their copyright. Yet if an AI made this in 2023, suddenly there is a gray area, as I am selling a likeness that nobody owns (by virtue of a lack of personhood in its creation). I feel that's a bit odd, and something people may try to exploit with this ruling. At the same time, if we give that to Disney, what's the end of the scope of copyright?
  - freejazz 3y ago
    >So! Here's my really dumb question: what is the difference between the two? In one there is copying, in the other there isn't copying. Neither is sufficiently creative to get its own copyright because there is no human author. >That image can't be copyrighted (as an AI can't obtain a copyright). Disney can't claim that image as Mickey too, lest they claim every permutation of his characteristics possible, the territory of which is really large. If I write a love story, can someone copy it just by changing the name of the characters? Why don't you just go on wikipedia and read about copyright a bit? There's over a hundred years of caselaw navigating the line you are trying to define so crudely.
    - juris 3y ago
      :) https://en.wikipedia.org/wiki/Category:United_States_copyright_case_law https://en.wikipedia.org/wiki/Category:United_States_copyrig... OK, sure, internet guy / gal. All I'm doing here is turning the knobs and testing the variables here. I realize it might be crude, I apologize for that. You're probably a lawyer, and you probably hate this. The line I'm trying to understand is this: Mockey has three buttons and was generated by an AI, and looks similar to Mickey. I can copy that art and become the human owner of it (my hands are the 'spark of creativity' mentioned in our Wikipedia article), then sell it. Disney will claim that selling this art can infringe on its copyright, but nobody earns copyright to the AI-generated art itself. I own copyright to my physical, hand drawn copy of it. Okay; Taking that apart: Disney's copyright is infringed when? The sale? The second I drew Mockey? Or the second the AI created it? Or is it when the AI was trained? I'm assuming -I- am the violator of the copyright. At least, I'm the guy who gets sued. So now, let's remove me from the equation. If I train a model on Mickey and all permutations thereof, sell the model, and when the user prompts it, it hallucinates none other than Mickey in his enigmatic circular perfection, who copied it and when? Who violated Disney's copyright? You might say the AI (nobody) copied it, and nobody (the AI) violates Disney's copyright until some human tries to ctrl+c/ctrl+v the file from the AI's 'electronic threshhold' to a file on their desktop, and it's the viewer who copied it. So let's extend that 'electronic threshhold' in the following scenario: a sufficiently impressive AI makes a video game world simulation and incidentally hallucinates a Mickey Mouse character model. I sold the -game-, is there a violation of copyright? Absurd. Sorry for being facetious but, throughout the history of US case law, I'm not finding good refs for these cases. You think maybe tech outstrips law? :D It just seems to me: if AI art can't be copyrighted as there is no human source, then there is no human responsible for incidental copyright violation either. "By golly lightning struck that tree and it looks like Mickey Mouse! Sue God!"

by juris 3y ago

freejazz 3y ago

1. It's a copy. You described copying. You can't sell something that's a copy of another person's work (with some exceptions). That's the basic principle of copyright infringement. The ruling doesn't stand for the principle that anything created by an AI can be free to sell. It stands for the proposition that an AI can't obtain a copyright because it isn't a creative author. Can I sell homemade VHS copies of the Seinfeld DVDs? Should I be able to? 2. An AI can't obtain a copyright, so, assuming it's not a work that violates an existing copyright, it would not be copyrightable.

juris 3y ago
So! Here's my really dumb question: what is the difference between the two? I agree, in that first instance and at first glance, clearly copying. There are plenty of incredible copy artists in China who fabricate like copies of fine art, who approximate the role of our AI here. There might be something to be said later about the nature of what makes a work transformative and whether the use of an AI is sufficient for it, but setting that thought aside, let's slide the scale from the meatspace to the rasterized space. For the second: our mockey mouse is the spitting image of mickey mouse. Maybe the lines are a breadth of a hair off the fine print from what was submitted to the USPTO. Maybe it is by all intents and purposes using the same line width for his outlines, etc, but due to some fluke with how AI works, Mockey has three buttons instead of two, or (incredibly) 5 fingers instead of 4. Or maybe Mockey is exactly better proportioned than the cartoon friend we know, appealing more to our gross human sensibilities, but some may still construe him to be Mickey Mouse from a distance. That image can't be copyrighted (as an AI can't obtain a copyright). Disney can't claim that image as Mickey too, lest they claim every permutation of his characteristics possible, the territory of which is really large. Still, it stands to reasonable, common law: if its the 90s, and I drew Mockey myself and put him on a bag and made enough money on it that Disney goes after me, it's a sensible outcome that Disney wins this in court, and its primary defense is that this likeness violates their copyright. Yet if an AI made this in 2023, suddenly there is a gray area, as I am selling a likeness that nobody owns (by virtue of a lack of personhood in its creation). I feel that's a bit odd, and something people may try to exploit with this ruling. At the same time, if we give that to Disney, what's the end of the scope of copyright?
- freejazz 3y ago
  >So! Here's my really dumb question: what is the difference between the two? In one there is copying, in the other there isn't copying. Neither is sufficiently creative to get its own copyright because there is no human author. >That image can't be copyrighted (as an AI can't obtain a copyright). Disney can't claim that image as Mickey too, lest they claim every permutation of his characteristics possible, the territory of which is really large. If I write a love story, can someone copy it just by changing the name of the characters? Why don't you just go on wikipedia and read about copyright a bit? There's over a hundred years of caselaw navigating the line you are trying to define so crudely.
  - juris 3y ago
    :) https://en.wikipedia.org/wiki/Category:United_States_copyright_case_law https://en.wikipedia.org/wiki/Category:United_States_copyrig... OK, sure, internet guy / gal. All I'm doing here is turning the knobs and testing the variables here. I realize it might be crude, I apologize for that. You're probably a lawyer, and you probably hate this. The line I'm trying to understand is this: Mockey has three buttons and was generated by an AI, and looks similar to Mickey. I can copy that art and become the human owner of it (my hands are the 'spark of creativity' mentioned in our Wikipedia article), then sell it. Disney will claim that selling this art can infringe on its copyright, but nobody earns copyright to the AI-generated art itself. I own copyright to my physical, hand drawn copy of it. Okay; Taking that apart: Disney's copyright is infringed when? The sale? The second I drew Mockey? Or the second the AI created it? Or is it when the AI was trained? I'm assuming -I- am the violator of the copyright. At least, I'm the guy who gets sued. So now, let's remove me from the equation. If I train a model on Mickey and all permutations thereof, sell the model, and when the user prompts it, it hallucinates none other than Mickey in his enigmatic circular perfection, who copied it and when? Who violated Disney's copyright? You might say the AI (nobody) copied it, and nobody (the AI) violates Disney's copyright until some human tries to ctrl+c/ctrl+v the file from the AI's 'electronic threshhold' to a file on their desktop, and it's the viewer who copied it. So let's extend that 'electronic threshhold' in the following scenario: a sufficiently impressive AI makes a video game world simulation and incidentally hallucinates a Mickey Mouse character model. I sold the -game-, is there a violation of copyright? Absurd. Sorry for being facetious but, throughout the history of US case law, I'm not finding good refs for these cases. You think maybe tech outstrips law? :D It just seems to me: if AI art can't be copyrighted as there is no human source, then there is no human responsible for incidental copyright violation either. "By golly lightning struck that tree and it looks like Mickey Mouse! Sue God!"