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The point of copyright is to protect the rights of human creators. AI tools are not human creators. If I go to an artist and say "make me a picture with X, Y,

The point of copyright is to protect the rights of human creators. AI tools are not human creators. If I go to an artist and say "make me a picture with X, Y, and Z features", they own the copyright unless they agree to transfer it to me. An AI tool never owns the copyright to its work because it's not a person, so you cannot acquire the copyright on the work since you didn't generate it. It's an entirely different process from using Photoshop (&c), and I think conflating them requires either a significant lack of understanding of how AI-based generation tools work (the most common issue) or a deliberate desire to confuse the issue.

tiborsaas 3y ago
In this case, the winning image wasn't a single prompt to image. The author generated a lot of images and invested lots of hours into it till he considered it ready. AI was more like a custom stock asset generator in this case. We will need to seriously revise copyright laws in the age of AI because this new technology is simply not compatible with the assumptions the current ones are based on. (regardless how much lobby power are in them)
- dahfizz 3y ago
  This is addressed in TFA: > The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence (“AI”), and this content must therefore be disclaimed in an application for registration. The human-authored portion of the work would be copyrightable if the author disclaimed the portions that were created by an LLM.
  - adhesive_wombat 3y ago
    Does this mean that if I use an even more deterministic tool like, say, autocomplete to write software, that bit (say an auto-generated function definition), doesn't attract copyright? Not that it doesn't make sense to say what they did, but it seems not quite compatible with how copyright already seems to work in practice. Which is, instead another demonstration that copyright in general is a pretty internally-inconsistent system when it comes to the details.
    - dahfizz 3y ago
      I'm not a copyright lawyer, but I think its pretty easy to argue that generated boiler plate constitutes a "de minimis" amount of content and so you would still own the copyright of all the code
    - nonethewiser 3y ago
      Hm. I could see an argument for something less deterministic being less copyrightable.
    - neltnerb 3y ago
      If the autocompleted part were copyrighted, why would you be able to use it freely? What claim to you have to authorship? Did you, perhaps, write the stuff that the autocomplete used as context to give you a selection of choices to make about what to put there? Because that still sounds like a human making choices about things to me. This is a vaguely recognizable metaphor for prompt engineering, but I think you're orders of magnitude off in estimating the ratio of human choice to computer extrapolation. Sure, a compiler or something maybe is a better metaphor, but even then the concept, the source material is generated by a human. You could say that a prompt is source material and the generator is just a compiler analogy, but I think they made the only choice they could here. Otherwise you can use a generator to make literally a billion images, copyright them all (including aspects you did not make a choice to add, like details on people in the background there), and control art for the rest of time.
- dragonwriter 3y ago
  > In this case, the winning image wasn't a single prompt to image. The author generated a lot of images and invested lots of hours into it till he considered it ready. This is exactly the “sweat of the brow” argument for copyrightability that courts have consistently rejected in favor of a creativity requirement since long before AI tools existed, though, so its probably not the argument you want to make for copyrightability.
40yearoldman 3y ago
How is this different than attaching 10 paint cans of different color from strings and poking hold in them and letting them swing? Could the creator of the ai producing code then hold copyright, or maybe it’s those who found the weights? This ruling seems to suggest any method of automating works would not qualify for copyright. If so. We are just one step closer to abandoning the notion of a copyright, which still is the only logical solution in a world where we can have and do anything we desire at the click of a button.
- EA-3167 3y ago
  > How is this different than attaching 10 paint cans of different color from strings and poking hold in them and letting them swing? The "creator" of the art in that case is also the creator of the system which generates the art. You didn't create Stable Diffusion, MidJourney or whatever else, it's just a tool you have access to. I'm not sure if that's a difference that should matter, but it's clearly a notable difference.
  - nonethewiser 3y ago
    So you think the creators of mid journey could copyright this art piece?
    - EA-3167 3y ago
      I doubt it, that would be like someone setting up the hypothetical "swinging paint cans" for public use then trying to claim copyright on the product. I think the slam dunk case would be you create your own system, train it on data you own, and then you own the output. Again, this doesn't strike me as a useful standard for copyright, but I think it's the state of the law today. Obviously with new technology there's a need to revisit the law, and honestly even without the new tech copyright law was already a steaming mess.
      - rnk 3y ago
        I bet I can create a machine that uses those 10 cans of paint to do computations. That's all a computer is, really. Those 10 cans of paint swung by an artist are a creative endeavor, but my output as a software engineer with the 10 cans of paint is not? Seems arbitrary and unfair and probably shouldn't stand careful legal scrutiny.
mbakke 3y ago
I don't see a difference between drawing something with paint and brushes vs prompting a model for the desired output (624 times, no less). Sure the latter requires less labor and a very different skill, but it's still a creative act.
ortusdux 3y ago
What If I personally train a network on my own art? The computer is mine, the software is mine, the reference art is mine, but I have no rights to anything produced?
- EA-3167 3y ago
  I think the question in front of the courts then would be to what extent your creation of the network is important vs. the training data you used. Is it really feasible to train a robust network on whatever reference material you're personally able to generate?
  - ortusdux 3y ago
    It will definitely end up in the courts. This* is a list of artists that have sold the rights to their music catalog. If Sony, who spent $200m on Bob Dylan's master recordings, sets up servers, pays developers, and creates a network using only Dylan recordings they have the rights to, can they copyright newly generated songs? I bet we will find out soon. https://www.ajournalofmusicalthings.com/heres-a-running-list-of-artists-who-have-sold-some-or-all-of-their-song-catalogues-to-a-new-breed-of-company/ https://www.ajournalofmusicalthings.com/heres-a-running-list...
    - nonethewiser 3y ago
      I mean, it sounds shitty, but if they own the rights then it seems obvious that they can.
  - nonethewiser 3y ago
    I don’t quite understand what you are saying. In his scenario, what details would make it not copyrightable? If the network is paramount to the creation does that make it more or less copyrightable?
- nonethewiser 3y ago
  Maybe so? It seems like currently the chain of ownership is so complicated and spread out that its not feasible. But I dont see a good claim by another party in your case. Best one might be a library or hardware but thats getting ridiculous.
ssalka 3y ago
Still, it's a hard case to make that any AI-generated imagery lacks sufficient human input into the creation process. Both Midjourney and Stable Diffusion offer a number of parameters allowing the user to control how the generation will go (CFG, samplers, etc). So IMO there is necessarily some human input required to make the process work well.
- nonethewiser 3y ago
  Not just that but there are many iterations with pre and post processing. Im not sure about the process for this image and im not sure what I think is fair, but “AI generated” is a wide spectrum.
- IKantRead 3y ago
  As someone who has been doing a lot of work in SD, I just wanted to strongly second this. Stable Diffusion and the like are much closer to when photoshop first appeared than they are to than the completely automatic art generation machine people make them out to be. I remember well both digital cameras and photoshop receiving initial criticism from "real" artists... until they were both widely adopted by these communities. The critique of digital photography was that it's not really art because you can just take a bajillion pictures and then filter out the ones that don't look good. Photoshop users (especially web comic creators) got similar flack that it didn't take real artistic skill to make nice images in photoshop. For anyone young enough to always have photoshop and digital photography will likely be surprised that there was such resistance and snobbery around using these tools. There was also the same fear that these tools would ruin art by making "real" artists obsolete.
- dahfizz 3y ago
  > it's a hard case to make that any AI-generated imagery lacks sufficient human input The test is not "input", but "authorship". If you commissioned some art from an artist, you would have input on what they make but the artist would be the author and copyright holder of their work. Its hard for me to accept that the prompter "authored" the output of an LLM. The output of the LLM was entirely generated and authored by the LLM. It did so at your command, but that doesn't count as authorship.
badrequest 3y ago
If I generate a base image with Midjourney, and then apply a mild gaussian blur in Photoshop to a 10x10 pixel space within that image, can I say I've created it? If not, why not?
rnk 3y ago
What's the threshold between the AI input and my input that moves it from copyrightable to not? We can automate a lot of those things an artist did on a photo, does that make it not copyrightable (that's a long word, let's use CR)). We kind of already have automated image-processing today, where does it change from cr to not-cr. I can take creative photos and then edit them and I can own the the copyright. If I took my photo and used automated improvement tools (like in google photo), I think it's still copyrightable. Now I take my automated outdoor camera at my house and take pictures of things, then I put them through google photos in my automated image pipeline, I guess they are copyrightable? Then I use those photos as input into a non-copyrightable-by-definition system like midjourney or whatever, now the output is not copyrightable. Seems pretty arbitrary. If an artist creates an artistic work (lets say it is a mirror of people), it's cr. If I as a software engineer create software, that software is cr. But the output of the cr is not cr?

tiborsaas 3y ago

In this case, the winning image wasn't a single prompt to image. The author generated a lot of images and invested lots of hours into it till he considered it ready. AI was more like a custom stock asset generator in this case. We will need to seriously revise copyright laws in the age of AI because this new technology is simply not compatible with the assumptions the current ones are based on. (regardless how much lobby power are in them)

dahfizz 3y ago
This is addressed in TFA: > The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence (“AI”), and this content must therefore be disclaimed in an application for registration. The human-authored portion of the work would be copyrightable if the author disclaimed the portions that were created by an LLM.
- adhesive_wombat 3y ago
  Does this mean that if I use an even more deterministic tool like, say, autocomplete to write software, that bit (say an auto-generated function definition), doesn't attract copyright? Not that it doesn't make sense to say what they did, but it seems not quite compatible with how copyright already seems to work in practice. Which is, instead another demonstration that copyright in general is a pretty internally-inconsistent system when it comes to the details.
  - dahfizz 3y ago
    I'm not a copyright lawyer, but I think its pretty easy to argue that generated boiler plate constitutes a "de minimis" amount of content and so you would still own the copyright of all the code
  - nonethewiser 3y ago
    Hm. I could see an argument for something less deterministic being less copyrightable.
  - neltnerb 3y ago
    If the autocompleted part were copyrighted, why would you be able to use it freely? What claim to you have to authorship? Did you, perhaps, write the stuff that the autocomplete used as context to give you a selection of choices to make about what to put there? Because that still sounds like a human making choices about things to me. This is a vaguely recognizable metaphor for prompt engineering, but I think you're orders of magnitude off in estimating the ratio of human choice to computer extrapolation. Sure, a compiler or something maybe is a better metaphor, but even then the concept, the source material is generated by a human. You could say that a prompt is source material and the generator is just a compiler analogy, but I think they made the only choice they could here. Otherwise you can use a generator to make literally a billion images, copyright them all (including aspects you did not make a choice to add, like details on people in the background there), and control art for the rest of time.
dragonwriter 3y ago
> In this case, the winning image wasn't a single prompt to image. The author generated a lot of images and invested lots of hours into it till he considered it ready. This is exactly the “sweat of the brow” argument for copyrightability that courts have consistently rejected in favor of a creativity requirement since long before AI tools existed, though, so its probably not the argument you want to make for copyrightability.

40yearoldman 3y ago

How is this different than attaching 10 paint cans of different color from strings and poking hold in them and letting them swing? Could the creator of the ai producing code then hold copyright, or maybe it’s those who found the weights? This ruling seems to suggest any method of automating works would not qualify for copyright. If so. We are just one step closer to abandoning the notion of a copyright, which still is the only logical solution in a world where we can have and do anything we desire at the click of a button.

EA-3167 3y ago
> How is this different than attaching 10 paint cans of different color from strings and poking hold in them and letting them swing? The "creator" of the art in that case is also the creator of the system which generates the art. You didn't create Stable Diffusion, MidJourney or whatever else, it's just a tool you have access to. I'm not sure if that's a difference that should matter, but it's clearly a notable difference.
- nonethewiser 3y ago
  So you think the creators of mid journey could copyright this art piece?
  - EA-3167 3y ago
    I doubt it, that would be like someone setting up the hypothetical "swinging paint cans" for public use then trying to claim copyright on the product. I think the slam dunk case would be you create your own system, train it on data you own, and then you own the output. Again, this doesn't strike me as a useful standard for copyright, but I think it's the state of the law today. Obviously with new technology there's a need to revisit the law, and honestly even without the new tech copyright law was already a steaming mess.
    - rnk 3y ago
      I bet I can create a machine that uses those 10 cans of paint to do computations. That's all a computer is, really. Those 10 cans of paint swung by an artist are a creative endeavor, but my output as a software engineer with the 10 cans of paint is not? Seems arbitrary and unfair and probably shouldn't stand careful legal scrutiny.

mbakke 3y ago

I don't see a difference between drawing something with paint and brushes vs prompting a model for the desired output (624 times, no less). Sure the latter requires less labor and a very different skill, but it's still a creative act.

ortusdux 3y ago

What If I personally train a network on my own art? The computer is mine, the software is mine, the reference art is mine, but I have no rights to anything produced?

EA-3167 3y ago
I think the question in front of the courts then would be to what extent your creation of the network is important vs. the training data you used. Is it really feasible to train a robust network on whatever reference material you're personally able to generate?
- ortusdux 3y ago
  It will definitely end up in the courts. This* is a list of artists that have sold the rights to their music catalog. If Sony, who spent $200m on Bob Dylan's master recordings, sets up servers, pays developers, and creates a network using only Dylan recordings they have the rights to, can they copyright newly generated songs? I bet we will find out soon. https://www.ajournalofmusicalthings.com/heres-a-running-list-of-artists-who-have-sold-some-or-all-of-their-song-catalogues-to-a-new-breed-of-company/ https://www.ajournalofmusicalthings.com/heres-a-running-list...
  - nonethewiser 3y ago
    I mean, it sounds shitty, but if they own the rights then it seems obvious that they can.
- nonethewiser 3y ago
  I don’t quite understand what you are saying. In his scenario, what details would make it not copyrightable? If the network is paramount to the creation does that make it more or less copyrightable?
nonethewiser 3y ago
Maybe so? It seems like currently the chain of ownership is so complicated and spread out that its not feasible. But I dont see a good claim by another party in your case. Best one might be a library or hardware but thats getting ridiculous.

ssalka 3y ago

Still, it's a hard case to make that any AI-generated imagery lacks sufficient human input into the creation process. Both Midjourney and Stable Diffusion offer a number of parameters allowing the user to control how the generation will go (CFG, samplers, etc). So IMO there is necessarily some human input required to make the process work well.

nonethewiser 3y ago
Not just that but there are many iterations with pre and post processing. Im not sure about the process for this image and im not sure what I think is fair, but “AI generated” is a wide spectrum.
IKantRead 3y ago
As someone who has been doing a lot of work in SD, I just wanted to strongly second this. Stable Diffusion and the like are much closer to when photoshop first appeared than they are to than the completely automatic art generation machine people make them out to be. I remember well both digital cameras and photoshop receiving initial criticism from "real" artists... until they were both widely adopted by these communities. The critique of digital photography was that it's not really art because you can just take a bajillion pictures and then filter out the ones that don't look good. Photoshop users (especially web comic creators) got similar flack that it didn't take real artistic skill to make nice images in photoshop. For anyone young enough to always have photoshop and digital photography will likely be surprised that there was such resistance and snobbery around using these tools. There was also the same fear that these tools would ruin art by making "real" artists obsolete.
dahfizz 3y ago
> it's a hard case to make that any AI-generated imagery lacks sufficient human input The test is not "input", but "authorship". If you commissioned some art from an artist, you would have input on what they make but the artist would be the author and copyright holder of their work. Its hard for me to accept that the prompter "authored" the output of an LLM. The output of the LLM was entirely generated and authored by the LLM. It did so at your command, but that doesn't count as authorship.

badrequest 3y ago

If I generate a base image with Midjourney, and then apply a mild gaussian blur in Photoshop to a 10x10 pixel space within that image, can I say I've created it? If not, why not?

rnk 3y ago

What's the threshold between the AI input and my input that moves it from copyrightable to not? We can automate a lot of those things an artist did on a photo, does that make it not copyrightable (that's a long word, let's use CR)). We kind of already have automated image-processing today, where does it change from cr to not-cr. I can take creative photos and then edit them and I can own the the copyright. If I took my photo and used automated improvement tools (like in google photo), I think it's still copyrightable. Now I take my automated outdoor camera at my house and take pictures of things, then I put them through google photos in my automated image pipeline, I guess they are copyrightable? Then I use those photos as input into a non-copyrightable-by-definition system like midjourney or whatever, now the output is not copyrightable. Seems pretty arbitrary. If an artist creates an artistic work (lets say it is a mirror of people), it's cr. If I as a software engineer create software, that software is cr. But the output of the cr is not cr?