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I'm going to try to plead my case for images generated using sophisticated prompt engineering to be copyrightable. For example, at the point that I've written a

I'm going to try to plead my case for images generated using sophisticated prompt engineering to be copyrightable. For example, at the point that I've written a prompt with 20 tags, 10 negative prompt tags, some loras, custom weights, embeddings merges, and prompt editing, I'm now writing what is effectively a "program", which should be copyrightable and so should its outputs. It's total BS to me that a book of midjourney generated images is itself copyrightable because a human arranged the book together, but that a highly sophisticated prompt involving custom tooling wouldn't be. If nothing else, my comments should show the US Patent Office how deep the rabbit-hole goes with just how interpolatable everything is with everything else.

stonogo 3y ago
No, you're passing inputs to a program, and your description completely omits the vast majority of that input: the creative output of an unknown number of other people, whose rights you are attempting to launder.
- Robotbeat 3y ago
  Transformative collage.
- stale2002 3y ago
  Thats nice and all. But it has nothing to do with whether something is copyrightable or not. Instead, something is copyrightable based on the amount of human input into the process. And it is very clear that there can be a lot of human input into AI image generation. Even though I will concede that going into midjourney and just typing in "Hot anime girl" isn't a lot of input and likely doesn't deserve copyright protection. But there can be so much more to AI art than the boring case of low effort mid journey prompts.
  - LegitShady 3y ago
    No your human input product is the inputs you authored but you're applying for copyright for something else.
    - stale2002 3y ago
      So then yes, it is about the human input into the process. Thats what I just said. Having large amounts of human input is the thing that matters for this stuff, which is the case for many forms of AI art. In the same way how photoshop uses a computer, and the computer creates the art, the resulting computer generate art can still have copyright protections. (because of the large amount of human input, even though yes it used a computer)
      - LegitShady 3y ago
        The product of your human work is the input, not the ai generated image. You are merely commissioning some system to do the work on which you have very little actual future authorship except the commission. For art we don't grant the copyright to someone commissioning work, they have to negotiate with the artist for that. But your artist is not human, so cannot create copyrightable works, so you can't even bargain for the right. Your copyrightable prompt just created a public domain result. As for your comparison with photoshop, you have it backwards. The lesson you should learn is that if you fill portions of a work using something that starts authoring parts of the image, you should lose the ability to copyright those parts of the image, because you didn't author them. Just like other works that are a mix of public domain and copyrighted elements, you can only copyright the human authored work. It's like making a comic with AI pictures - the images themselves are public domain (assuming you haven't forgotten to license the use of those works in your computer system that generates the image for you), you assembling the work into a comic is what you own the copyright to. the characters and images designed by a machine remain public domain, no matter if you prompted all of them.
        stale2002 3y ago
        > The lesson you should learn is that if you fill portions of a work using something that starts authoring parts of the image, you should lose the ability to copyright those parts of the image, because you didn't author them. In your opinion then, using this same line of logic, Photoshop is not protected. The courts disagree with you though. Using your line of logic, you could say that the computer is authoring the work using Photoshop. It is the computer printing out the picture using bits and bytes. That's not a human! That a computer program named photoshop! Then follow the exact line of logic from there. > characters and images designed by a machine remain public domain, We know this to be false though, because a character created by Photoshop is done on a computer though. Therefore, it is clear that yes a machine can be used in the process, unless you are going to claim that Photoshop is not protected because it is run on a computer.
  - raincole 3y ago
    If the court is convinced that prompt engineering is "original and creative".[1] Maybe it is. Or maybe it's more like tweaking the random seed. [1]: https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf https://www.copyright.gov/comp3/chap300/ch300-copyrightable-..., see "The Originality Requirement" and "Creativity".
  - stonogo 3y ago
    You've nailed the "creative" but not the "original" and you need both.
- dleeftink 3y ago
  Sampling is an art form if properly attributed (and possibly even without; whole genres are built on the premise), especially if it elevates the original work. That's not to say copyrighting ML derived creative works is the way forward, but that creativity has bearing wherever a 'medium' can be manipulated.
lern_too_spel 3y ago
Copyright is, like all regulation, freedom restriction for the benefit of society. Producing movies and books takes a lot of investment, and people would not do it to the extent they do without copyright. If we think there is more than enough creative content, we should reduce copyright protections, and if we think there is not enough, we should increase it. Generative AI will move the needle very far in the direction of overabundance and should result in correspondingly reduced copyright protections.
LegitShady 3y ago
The thing you're authoring is just your prompt. Apply for a copyright for it. The image or text generated in reply is generated by a computer with no more input from you than someone commissioning work using very precise words, and lacks human authorship.
- idle_zealot 3y ago
  This falls apart when you start getting into things like control net and posing, or iterative erasing, reprompting, and in/outfilling. It starts feeling more like some weird combination of 3d modeling, photoshop, and a really advanced autofill.
  - LegitShady 3y ago
    if you keep prompting an artist for edits over and over again for more changes, you don't suddenly own the copyright. the lesson you should learn is that advanced ai autofill in photoshop may lack human authorship, but it wasn't good enough to become a serious copyright issue until those tools came into existence.
- singpolyma3 3y ago
  That's the same as saying if I open paint and draw with the mouse my mouse movements should be copyrightable but not the resulting image...
  - blehn 3y ago
    It's not the same. If you make exactly the same mouse movements in paint 100 times, you will get 100 identical images. If you enter the exact same midjourney prompt 100 times, you'll probably get 100 different resulting images. The relationship between your authorship and the final image in the two cases is quite different.
  - LegitShady 3y ago
    your mouse doesnt make decisions for you. ML based art does, which is why it lacks human authorship and you shouldn't be able to copyright it. If you hand painted something in photoshop 100% you can copyright it. It has human authorship. If its mostly AI based fill, those elements can't be copyrighted. if Its 100% an ai result, its public domain.
andrewprock 3y ago
Your prompt (the input) should be copyrightable. The output should not.
- asynchronous 3y ago
  Okay but does that include the seed? The sum of the input model datasets? I think a better scenario is no copyright for any part of this process. Give humanity what they’re going to take anyway- open access to this tech.
optymizer 3y ago
The training model for Stable Diffusion has a lot of copyrighted images mixed together into an output which makes the plagiarism non-obvious, but let's reduce the set by 1 image. Shouldn't affect the output too much, right? Maybe some prompt will have a slightly different image. Now let's reduce it by another image. Again, less options for what to display, fewer images to take pixels from, but still a lot of options, output may sound copyrightable. Now lets do that N-1 times. What output will we get when the model was trained on a single image, let's say an image that is labeled 'dog'. If your prompt is "an image of a dog" you will get that image, the only image in the training set. When going from latent space to image space, taking pixels from that image in the output, despite it being done in convoluted ways, is that not an obvious copyright infringement? I think it is. There's a cloud of mumbo jumbo about latent space, but after the dust settles and it needs to generate pixels in the output image, Stable Diffusion has a step that is essentially copying pixels from the source image into the output. When there's only 1 image, it will reproduce large portions of that image, necessarily infringing on copyright. So then adding back images one by one into the training set, each one being used as source for the pixels being copied, what makes that model OK? Just because the output is 50% image A and 50% image B, or 0.1% image A and 0.1% image B and 99.8% image C, doesn't suddenly make it OK. Once there are millions of images, you end up with just tiny blobs of pixels being copied from many different images. That's still infringes on the copyright of all those images, because it's essentially a map-reduce process that maps pixels from copyrighted images and reduces them into a single image.
- stale2002 3y ago
  > is that not an obvious copyright infringement? No, it is absolutely not. Let's do the same hypothetical that you brought up and using other people's art, but instead are model just takes 1 single pixel from 1 million images. Taking 1 single pixel from a million images, or the first letter from every book, and putting it into a new work is transformative fair use. Transformative fair use is legal. > Just because the output is 50% image A and 50% image B, or 0.1% image A and 0.1% image B and 99.8% image C, doesn't suddenly make it OK. It quite literally does! Using .1% percent of an image is legal. The amount of work that you take from someone else is one of the 4 factors of fair use. Yes, the specific example you gave falls under what the courts literally use right now as one of the factors!

stonogo 3y ago

No, you're passing inputs to a program, and your description completely omits the vast majority of that input: the creative output of an unknown number of other people, whose rights you are attempting to launder.

Robotbeat 3y ago
Transformative collage.
stale2002 3y ago
Thats nice and all. But it has nothing to do with whether something is copyrightable or not. Instead, something is copyrightable based on the amount of human input into the process. And it is very clear that there can be a lot of human input into AI image generation. Even though I will concede that going into midjourney and just typing in "Hot anime girl" isn't a lot of input and likely doesn't deserve copyright protection. But there can be so much more to AI art than the boring case of low effort mid journey prompts.
- LegitShady 3y ago
  No your human input product is the inputs you authored but you're applying for copyright for something else.
  - stale2002 3y ago
    So then yes, it is about the human input into the process. Thats what I just said. Having large amounts of human input is the thing that matters for this stuff, which is the case for many forms of AI art. In the same way how photoshop uses a computer, and the computer creates the art, the resulting computer generate art can still have copyright protections. (because of the large amount of human input, even though yes it used a computer)
    - LegitShady 3y ago
      The product of your human work is the input, not the ai generated image. You are merely commissioning some system to do the work on which you have very little actual future authorship except the commission. For art we don't grant the copyright to someone commissioning work, they have to negotiate with the artist for that. But your artist is not human, so cannot create copyrightable works, so you can't even bargain for the right. Your copyrightable prompt just created a public domain result. As for your comparison with photoshop, you have it backwards. The lesson you should learn is that if you fill portions of a work using something that starts authoring parts of the image, you should lose the ability to copyright those parts of the image, because you didn't author them. Just like other works that are a mix of public domain and copyrighted elements, you can only copyright the human authored work. It's like making a comic with AI pictures - the images themselves are public domain (assuming you haven't forgotten to license the use of those works in your computer system that generates the image for you), you assembling the work into a comic is what you own the copyright to. the characters and images designed by a machine remain public domain, no matter if you prompted all of them.
      - stale2002 3y ago
        > The lesson you should learn is that if you fill portions of a work using something that starts authoring parts of the image, you should lose the ability to copyright those parts of the image, because you didn't author them. In your opinion then, using this same line of logic, Photoshop is not protected. The courts disagree with you though. Using your line of logic, you could say that the computer is authoring the work using Photoshop. It is the computer printing out the picture using bits and bytes. That's not a human! That a computer program named photoshop! Then follow the exact line of logic from there. > characters and images designed by a machine remain public domain, We know this to be false though, because a character created by Photoshop is done on a computer though. Therefore, it is clear that yes a machine can be used in the process, unless you are going to claim that Photoshop is not protected because it is run on a computer.
- raincole 3y ago
  If the court is convinced that prompt engineering is "original and creative".[1] Maybe it is. Or maybe it's more like tweaking the random seed. [1]: https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf https://www.copyright.gov/comp3/chap300/ch300-copyrightable-..., see "The Originality Requirement" and "Creativity".
- stonogo 3y ago
  You've nailed the "creative" but not the "original" and you need both.
dleeftink 3y ago
Sampling is an art form if properly attributed (and possibly even without; whole genres are built on the premise), especially if it elevates the original work. That's not to say copyrighting ML derived creative works is the way forward, but that creativity has bearing wherever a 'medium' can be manipulated.

lern_too_spel 3y ago

Copyright is, like all regulation, freedom restriction for the benefit of society. Producing movies and books takes a lot of investment, and people would not do it to the extent they do without copyright. If we think there is more than enough creative content, we should reduce copyright protections, and if we think there is not enough, we should increase it. Generative AI will move the needle very far in the direction of overabundance and should result in correspondingly reduced copyright protections.

LegitShady 3y ago

The thing you're authoring is just your prompt. Apply for a copyright for it. The image or text generated in reply is generated by a computer with no more input from you than someone commissioning work using very precise words, and lacks human authorship.

idle_zealot 3y ago
This falls apart when you start getting into things like control net and posing, or iterative erasing, reprompting, and in/outfilling. It starts feeling more like some weird combination of 3d modeling, photoshop, and a really advanced autofill.
- LegitShady 3y ago
  if you keep prompting an artist for edits over and over again for more changes, you don't suddenly own the copyright. the lesson you should learn is that advanced ai autofill in photoshop may lack human authorship, but it wasn't good enough to become a serious copyright issue until those tools came into existence.
singpolyma3 3y ago
That's the same as saying if I open paint and draw with the mouse my mouse movements should be copyrightable but not the resulting image...
- blehn 3y ago
  It's not the same. If you make exactly the same mouse movements in paint 100 times, you will get 100 identical images. If you enter the exact same midjourney prompt 100 times, you'll probably get 100 different resulting images. The relationship between your authorship and the final image in the two cases is quite different.
- LegitShady 3y ago
  your mouse doesnt make decisions for you. ML based art does, which is why it lacks human authorship and you shouldn't be able to copyright it. If you hand painted something in photoshop 100% you can copyright it. It has human authorship. If its mostly AI based fill, those elements can't be copyrighted. if Its 100% an ai result, its public domain.

andrewprock 3y ago

Your prompt (the input) should be copyrightable. The output should not.

asynchronous 3y ago
Okay but does that include the seed? The sum of the input model datasets? I think a better scenario is no copyright for any part of this process. Give humanity what they’re going to take anyway- open access to this tech.

optymizer 3y ago

The training model for Stable Diffusion has a lot of copyrighted images mixed together into an output which makes the plagiarism non-obvious, but let's reduce the set by 1 image. Shouldn't affect the output too much, right? Maybe some prompt will have a slightly different image. Now let's reduce it by another image. Again, less options for what to display, fewer images to take pixels from, but still a lot of options, output may sound copyrightable. Now lets do that N-1 times. What output will we get when the model was trained on a single image, let's say an image that is labeled 'dog'. If your prompt is "an image of a dog" you will get that image, the only image in the training set. When going from latent space to image space, taking pixels from that image in the output, despite it being done in convoluted ways, is that not an obvious copyright infringement? I think it is. There's a cloud of mumbo jumbo about latent space, but after the dust settles and it needs to generate pixels in the output image, Stable Diffusion has a step that is essentially copying pixels from the source image into the output. When there's only 1 image, it will reproduce large portions of that image, necessarily infringing on copyright. So then adding back images one by one into the training set, each one being used as source for the pixels being copied, what makes that model OK? Just because the output is 50% image A and 50% image B, or 0.1% image A and 0.1% image B and 99.8% image C, doesn't suddenly make it OK. Once there are millions of images, you end up with just tiny blobs of pixels being copied from many different images. That's still infringes on the copyright of all those images, because it's essentially a map-reduce process that maps pixels from copyrighted images and reduces them into a single image.

stale2002 3y ago
> is that not an obvious copyright infringement? No, it is absolutely not. Let's do the same hypothetical that you brought up and using other people's art, but instead are model just takes 1 single pixel from 1 million images. Taking 1 single pixel from a million images, or the first letter from every book, and putting it into a new work is transformative fair use. Transformative fair use is legal. > Just because the output is 50% image A and 50% image B, or 0.1% image A and 0.1% image B and 99.8% image C, doesn't suddenly make it OK. It quite literally does! Using .1% percent of an image is legal. The amount of work that you take from someone else is one of the 4 factors of fair use. Yes, the specific example you gave falls under what the courts literally use right now as one of the factors!