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Photoshop does not require that the Mona Lisa be included as a foundational base layer for its paintbrush to brush digital paint. AI does. That is the differenc

Photoshop does not require that the Mona Lisa be included as a foundational base layer for its paintbrush to brush digital paint. AI does. That is the difference.

hn_acker 3y ago
Whoever's using Photoshop to paint, however, does need to have seen existing artwork. But the point you raised demonstrates that comparing an ML model to Photoshop is an inappropriate comparison. The relevant comparison is between a person using an ML model and a person using Photoshop. A person using an ML model doesn't need to have seen existing works to ask for a generic output, but does need to have seen existing works to ask for an output similar to an existing work (outside of innocent name coincidences in the prompt like "a painting of a starry night"). If the prompt - which, I remind, comes from the person using the model - were to contain no reference to the existing work, the author, or a characteristic/style strongly associated with the work, then the output would almost never if not never be similar to an existing work. Similarity is a prerequisite for infringement. No similarity means no infringement [1]. If a person painting with Photoshop produces something similar to an existing work and publishes the work to anyone else in a way not covered by fair use, then the painter bears the liability for the copyright infringement. Analogously, if a person using an ML model gives a prompt with a reference to an existing work, author, or strongly associated characteristic/style, gets an output similar to an existing work, and publishes the output to anyone else in a way not covered by fair use, then the user of the model should bear most of the liability for the copyright infringement. The model maker should take reasonable steps to prevent users from giving such prompts (or the model from accepting such prompts), but otherwise should bear no more than a minority of the liability (unless the model regularly gives infringing outputs for prompts with no references to any works, authors, or characteristics/styles). [1] https://en.wikipedia.org/wiki/Substantial_similarity#Substantial_similarity_in_copyright_infringement https://en.wikipedia.org/wiki/Substantial_similarity#Substan...
- voltaireodactyl 3y ago
  “Whoever's using Photoshop to paint, however, does need to have seen existing artwork.” If this were true there would be no art, my friend.
  - hn_acker 3y ago
    My bad. I failed to catch the assumptions that were in my head. Theoretically a painter can make art after having seen nothing but the real world or unedited photographs. Before people had the means to make and share paintings, they couldn't learn from paintings. They learned from the real world and their art styles. (One way of defining a painter's art style is "the opposite of what the painter can't paint".) Painters today generally don't learn how to paint by restricting themselves to looking at just the real world and realistic depictions, and the exceptions are not relevant to the question of what is copyright infringement. This is an assumption I didn't realize I was making, and now I am making it explicitly: The painter using Photoshop has seen paintings before (complete or in progress, doesn't matter), and the painter's creations are influenced by those past paintings. So I retract the following sentences from my previous comment: >> Whoever's using Photoshop to paint, however, does need to have seen existing artwork. >> A person using an ML model doesn't need to have seen existing works to ask for a generic output, but does need to have seen existing works to ask for an output similar to an existing work (outside of innocent name coincidences in the prompt like "a painting of a starry night"). And replace them with the following: In order to use Photoshop to produce a painting similar to an existing one, a painter usually needs to have seen existing paintings. There may be coincidences, such as when the painter's art style produces results similar to another painter's. In order to make a model produce an output similar to an existing work, the user usually needs to have seen existing works and subsequently give the model prompts referencing an existing work, author, or a characteristic/style strongly associated with a work/author. By strongly associated, I mean that a user who hasn't seen the Salvador Dalí painting "The Persistence of Memory" but has seen unrelated oil paintings might coincidentally give the prompt "oil painting of melting clocks" and get an output similar to that Dalí painting.
    - voltaireodactyl 3y ago
      I really respect and appreciate your willingness to interrogate your own assumptions in public — it’s a beautiful way to be, and I hope I present similarly. My response would be that much hinges on the word “usually”, as in, the artist must “usually” have seen existing Dali work to recreate a similar aesthetic. While that’s certainly true, it’s also true that similar art evolves in different places at similar times. Which is to say, while “usually” is accurate, “always” is not. AI requires “always”. In the same way a photocopier, or a collage of existing works, requires the prior art to exist inside it in order to produce similar output. I don’t think it’s unreasonable to ask for compensation, if a tool is unable to produce the desired result without including your existing oeuvre of completed, copyrighted work.

Photoshop does not require that the Mona Lisa be included as a foundational base layer for its paintbrush to brush digital paint. AI does. That is the difference.

hn_acker 3y ago

Whoever's using Photoshop to paint, however, does need to have seen existing artwork. But the point you raised demonstrates that comparing an ML model to Photoshop is an inappropriate comparison. The relevant comparison is between a person using an ML model and a person using Photoshop. A person using an ML model doesn't need to have seen existing works to ask for a generic output, but does need to have seen existing works to ask for an output similar to an existing work (outside of innocent name coincidences in the prompt like "a painting of a starry night"). If the prompt - which, I remind, comes from the person using the model - were to contain no reference to the existing work, the author, or a characteristic/style strongly associated with the work, then the output would almost never if not never be similar to an existing work. Similarity is a prerequisite for infringement. No similarity means no infringement [1]. If a person painting with Photoshop produces something similar to an existing work and publishes the work to anyone else in a way not covered by fair use, then the painter bears the liability for the copyright infringement. Analogously, if a person using an ML model gives a prompt with a reference to an existing work, author, or strongly associated characteristic/style, gets an output similar to an existing work, and publishes the output to anyone else in a way not covered by fair use, then the user of the model should bear most of the liability for the copyright infringement. The model maker should take reasonable steps to prevent users from giving such prompts (or the model from accepting such prompts), but otherwise should bear no more than a minority of the liability (unless the model regularly gives infringing outputs for prompts with no references to any works, authors, or characteristics/styles). [1] https://en.wikipedia.org/wiki/Substantial_similarity#Substantial_similarity_in_copyright_infringement https://en.wikipedia.org/wiki/Substantial_similarity#Substan...

voltaireodactyl 3y ago
“Whoever's using Photoshop to paint, however, does need to have seen existing artwork.” If this were true there would be no art, my friend.
- hn_acker 3y ago
  My bad. I failed to catch the assumptions that were in my head. Theoretically a painter can make art after having seen nothing but the real world or unedited photographs. Before people had the means to make and share paintings, they couldn't learn from paintings. They learned from the real world and their art styles. (One way of defining a painter's art style is "the opposite of what the painter can't paint".) Painters today generally don't learn how to paint by restricting themselves to looking at just the real world and realistic depictions, and the exceptions are not relevant to the question of what is copyright infringement. This is an assumption I didn't realize I was making, and now I am making it explicitly: The painter using Photoshop has seen paintings before (complete or in progress, doesn't matter), and the painter's creations are influenced by those past paintings. So I retract the following sentences from my previous comment: >> Whoever's using Photoshop to paint, however, does need to have seen existing artwork. >> A person using an ML model doesn't need to have seen existing works to ask for a generic output, but does need to have seen existing works to ask for an output similar to an existing work (outside of innocent name coincidences in the prompt like "a painting of a starry night"). And replace them with the following: In order to use Photoshop to produce a painting similar to an existing one, a painter usually needs to have seen existing paintings. There may be coincidences, such as when the painter's art style produces results similar to another painter's. In order to make a model produce an output similar to an existing work, the user usually needs to have seen existing works and subsequently give the model prompts referencing an existing work, author, or a characteristic/style strongly associated with a work/author. By strongly associated, I mean that a user who hasn't seen the Salvador Dalí painting "The Persistence of Memory" but has seen unrelated oil paintings might coincidentally give the prompt "oil painting of melting clocks" and get an output similar to that Dalí painting.
  - voltaireodactyl 3y ago
    I really respect and appreciate your willingness to interrogate your own assumptions in public — it’s a beautiful way to be, and I hope I present similarly. My response would be that much hinges on the word “usually”, as in, the artist must “usually” have seen existing Dali work to recreate a similar aesthetic. While that’s certainly true, it’s also true that similar art evolves in different places at similar times. Which is to say, while “usually” is accurate, “always” is not. AI requires “always”. In the same way a photocopier, or a collage of existing works, requires the prior art to exist inside it in order to produce similar output. I don’t think it’s unreasonable to ask for compensation, if a tool is unable to produce the desired result without including your existing oeuvre of completed, copyrighted work.