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I imagine the argument might be like this: I hire a session musician to play on my new single, paying him $100. I record the whole session. I ask him to play

I imagine the argument might be like this: I hire a session musician to play on my new single, paying him $100. I record the whole session. I ask him to play the opening to "Stairway to Heaven" and he does so. "Well, I can't use that as a sample without paying" "Ok play something like Jimmy Page" "Hmm, still sounds like Stairway to Heaven" "Ok, try and sound less like Stairway to Heaven but in that style" "Great, I'll use that one" and I release my song and get $5,000 in royalties. Should I be sued for infringement, or the guitarist? The problem, I suppose, is that if I had said "play something like 70s prog rock" and he played "Stairway to Heaven" and I didn't know what it was and said "great, I'll use that". Should I be sued for infringement, or the guitarist?

earthnail 3y ago
You are sued for infringement if you are the rightsholder. You need an agreement with the guitarist about rights. The default agreement for session musicians is that you pay them in return for their rights. It’s like a software engineering contractor. The contractor gets paid, the IP of their work is owned by the company.
foobazgt 3y ago
But it's not like that. Examples of clearly infringing prompts in TFA were as vague as "animated plumber". Asking your session musician for something "melancholy" and having them pass off Stairway to Heaven as original would be unreasonable.
- anonzzzies 3y ago
  I don’t know any other animated plumbers than Mario. So when you say animated plumber, I immediately see Mario in my head.
- IshKebab 3y ago
  If you ask a human to draw "videogame plumber" they will correctly infer that you mean Mario and draw that. The model isn't doing anything deliberately evil. It's doing exactly what it has been asked. The problem is people are expecting it to have detailed knowledge of trademark law and avoid infringing trademarks, which it hasn't been even asked to do.
  - DeepSeaTortoise 3y ago
    > The problem is people are expecting it to have detailed knowledge of trademark law and avoid infringing trademarks, which it hasn't been even asked to do. IMO that's why there will be but few effective legal restrictions placed on AI. Once you can reliably ask AIs to draft you terms of service in all applicable jurisdictions and languages, ask it to consult you on how to incorporate in country X or ask it to draft a contract between your and another company based on the negotiation results, lawyers will end up in a huge existential crisis. Especially because currently, as long as lawyers just barely meet their legal deadlines, it is basically impossible to hold them accountable for however badly they screw you over. A decent AI model could turn out to be a much safer bet than whatever lawyers are available on the jobmarket.
  - Baldbvrhunter 3y ago
    I cannot find any other video game plumbers except Mario, Luigi, Waluigi, and Wario. Well, I say that but there is John, a plumber, in the adult romantic comedy game Plumbers Don't Wear Ties [0]. Named by PC Gamer as number one on its "Must NOT Buy" list in May 2007. [0] https://limitedrungames.com/collections/plumbers-dont-wear-ties-definitive-edition https://limitedrungames.com/collections/plumbers-dont-wear-t...
- hhjinks 3y ago
  Game plumber, not animated plumber. There is only one game plumber of note. It's literally exactly as descriptive as just saying Nintendo's Mario.
- redcobra762 3y ago
  It’s not infringing just by existing, you would need to then go try to use it commercially for infringement to occur. Arguably, the LLM generating the image isn’t infringement, you using it would be.
kredd 3y ago
You, because you released the song and took the royalties? I don’t think every type of art can be compared against each other though, as there have been numerous precedents specifically for music, some for paintings, and some for photography with their own nuances. I still think people who are concerned that art related copyright will stifle generative AI should fight copyright laws directly. But that’s a harder pill to swallow since it will cause multi-industry wide havoc.
- atq2119 3y ago
  Part of what's interesting here is that generative AI makes it very easy to unknowingly and unintentionally get on the wrong side of copyright law, which is something that wasn't really possible before. That's something which, IMHO, should be acknowledged by the law.
  - Baldbvrhunter 3y ago
    Ask George Harrison about "My Sweet Lord" which cost him $587,000 for his unconcious infringement.
  - kredd 3y ago
    If you haven’t seen Mickey Mouse, Googled “cartoon mouse”, accidentally used it as inspiration, made T-Shirts, and sold them, Disney would be after you as well.
moron4hire 3y ago
In your example, there are missing details. Who owns the output? The way you've described it, that would typically mean that the guitarist is creating a "work for hire" so the ownership transfers to you, but that's a contract detail that would need to be resolved. For whoever owns the output also owns the liability of the output. You yourself might separately be able to pursue a claim against the guitarist for breech of contract. In the process of that, it might get discovered that you deliberately instructed the guitarist to copy the work, or they copied despite your instructions not to. But that doesn't change the fact that the final work is infringing. It just allows you to pursue damages that could potentially offset any damages you're liable for from the infringement. But this also isn't exactly the same situation as OpenAI. OpenAI isn't an individual creator working on contact for you. Even if their ToS ultimately assigns copyright of output to you, there is a matter of scale involved that I think changes things. It's one thing if your guitarist damages you by doing shoddy work, it's another of the guitarist systematizes and scales their shoddy work to damage large numbers of people. Perhaps that would then become a class action issue.
- Baldbvrhunter 3y ago
  Midjourney's TOS > You may not use the Service to try to violate the intellectual property rights of others, including copyright, patent, or trademark rights. Doing so may subject you to penalties including legal action or a permanent ban from the Service. Perplexity's > Intellectual Property Rights > Perplexity AI acknowledges and respects the intellectual property rights of all individuals and entities, and expects all users of the Service to do the same. As a user of the Service, you are granted access for your own personal, non-commercial use only.
  - moron4hire 3y ago
    Yeah, that's nice and all, but it's not what we're talking about. These passages are about deliberately using the tool to violate copyright. What if, in good faith, I don't deliberately attempt to infringe, but the tool still produces results that do? Because that is happening. And that's just their interpretation of the tool. There is another interpretation that their tool itself is a violation.
123yawaworht456 3y ago
using this analogy, copyright holders want to sue the guitarist for having listened to "Stairway to Heaven"
golol 3y ago
If you release a media with copyrighted content it is IMO first and foremost your problem. Now if you have some contract with the guitarist that specifies that he produced a sample he has the rights to and sold it to you, but he clearly wasn't truthful, you can maybe pass the liability to him. This is not, however, how people will hse generative models If you use Dall-E you are not paying OpenAI to buy the rights to a piece Dall-E has produced. I see it more akin to hiring a musician to play for you for an hour, or a painter to paint for you. You are paying OpenAI to paint you something, but you I think OpenAI would never enter a contract which states that they are selling you the rights to a work.
bnralt 3y ago
But none of the images in the article are for commercial use, they're for private use. So it would be akin to copyright laws saying "If you hire a guitar teacher, they can't play or teach you to play any copyrighted songs. All songs must either be their own original creation or in the public domain."
pier25 3y ago
The guitarist is not publishing the content, you are. It could be argued ChatGPT is a publisher too.
sjducb 3y ago
Ed Sheeran just won a case like this. He basically played the four chord song in court, and showed that the prosecutions’s song was “copying” an earlier song. https://amp.theguardian.com/music/2023/may/04/ed-sheeran-verdict-not-liable-copyright-lawsuit-marvin-gaye https://amp.theguardian.com/music/2023/may/04/ed-sheeran-ver...

earthnail 3y ago

You are sued for infringement if you are the rightsholder. You need an agreement with the guitarist about rights. The default agreement for session musicians is that you pay them in return for their rights. It’s like a software engineering contractor. The contractor gets paid, the IP of their work is owned by the company.

foobazgt 3y ago

But it's not like that. Examples of clearly infringing prompts in TFA were as vague as "animated plumber". Asking your session musician for something "melancholy" and having them pass off Stairway to Heaven as original would be unreasonable.

anonzzzies 3y ago
I don’t know any other animated plumbers than Mario. So when you say animated plumber, I immediately see Mario in my head.
IshKebab 3y ago
If you ask a human to draw "videogame plumber" they will correctly infer that you mean Mario and draw that. The model isn't doing anything deliberately evil. It's doing exactly what it has been asked. The problem is people are expecting it to have detailed knowledge of trademark law and avoid infringing trademarks, which it hasn't been even asked to do.
- DeepSeaTortoise 3y ago
  > The problem is people are expecting it to have detailed knowledge of trademark law and avoid infringing trademarks, which it hasn't been even asked to do. IMO that's why there will be but few effective legal restrictions placed on AI. Once you can reliably ask AIs to draft you terms of service in all applicable jurisdictions and languages, ask it to consult you on how to incorporate in country X or ask it to draft a contract between your and another company based on the negotiation results, lawyers will end up in a huge existential crisis. Especially because currently, as long as lawyers just barely meet their legal deadlines, it is basically impossible to hold them accountable for however badly they screw you over. A decent AI model could turn out to be a much safer bet than whatever lawyers are available on the jobmarket.
- Baldbvrhunter 3y ago
  I cannot find any other video game plumbers except Mario, Luigi, Waluigi, and Wario. Well, I say that but there is John, a plumber, in the adult romantic comedy game Plumbers Don't Wear Ties [0]. Named by PC Gamer as number one on its "Must NOT Buy" list in May 2007. [0] https://limitedrungames.com/collections/plumbers-dont-wear-ties-definitive-edition https://limitedrungames.com/collections/plumbers-dont-wear-t...
hhjinks 3y ago
Game plumber, not animated plumber. There is only one game plumber of note. It's literally exactly as descriptive as just saying Nintendo's Mario.
redcobra762 3y ago
It’s not infringing just by existing, you would need to then go try to use it commercially for infringement to occur. Arguably, the LLM generating the image isn’t infringement, you using it would be.

kredd 3y ago

You, because you released the song and took the royalties? I don’t think every type of art can be compared against each other though, as there have been numerous precedents specifically for music, some for paintings, and some for photography with their own nuances. I still think people who are concerned that art related copyright will stifle generative AI should fight copyright laws directly. But that’s a harder pill to swallow since it will cause multi-industry wide havoc.

atq2119 3y ago
Part of what's interesting here is that generative AI makes it very easy to unknowingly and unintentionally get on the wrong side of copyright law, which is something that wasn't really possible before. That's something which, IMHO, should be acknowledged by the law.
- Baldbvrhunter 3y ago
  Ask George Harrison about "My Sweet Lord" which cost him $587,000 for his unconcious infringement.
- kredd 3y ago
  If you haven’t seen Mickey Mouse, Googled “cartoon mouse”, accidentally used it as inspiration, made T-Shirts, and sold them, Disney would be after you as well.

moron4hire 3y ago

In your example, there are missing details. Who owns the output? The way you've described it, that would typically mean that the guitarist is creating a "work for hire" so the ownership transfers to you, but that's a contract detail that would need to be resolved. For whoever owns the output also owns the liability of the output. You yourself might separately be able to pursue a claim against the guitarist for breech of contract. In the process of that, it might get discovered that you deliberately instructed the guitarist to copy the work, or they copied despite your instructions not to. But that doesn't change the fact that the final work is infringing. It just allows you to pursue damages that could potentially offset any damages you're liable for from the infringement. But this also isn't exactly the same situation as OpenAI. OpenAI isn't an individual creator working on contact for you. Even if their ToS ultimately assigns copyright of output to you, there is a matter of scale involved that I think changes things. It's one thing if your guitarist damages you by doing shoddy work, it's another of the guitarist systematizes and scales their shoddy work to damage large numbers of people. Perhaps that would then become a class action issue.

Baldbvrhunter 3y ago
Midjourney's TOS > You may not use the Service to try to violate the intellectual property rights of others, including copyright, patent, or trademark rights. Doing so may subject you to penalties including legal action or a permanent ban from the Service. Perplexity's > Intellectual Property Rights > Perplexity AI acknowledges and respects the intellectual property rights of all individuals and entities, and expects all users of the Service to do the same. As a user of the Service, you are granted access for your own personal, non-commercial use only.
- moron4hire 3y ago
  Yeah, that's nice and all, but it's not what we're talking about. These passages are about deliberately using the tool to violate copyright. What if, in good faith, I don't deliberately attempt to infringe, but the tool still produces results that do? Because that is happening. And that's just their interpretation of the tool. There is another interpretation that their tool itself is a violation.

123yawaworht456 3y ago

using this analogy, copyright holders want to sue the guitarist for having listened to "Stairway to Heaven"

golol 3y ago

If you release a media with copyrighted content it is IMO first and foremost your problem. Now if you have some contract with the guitarist that specifies that he produced a sample he has the rights to and sold it to you, but he clearly wasn't truthful, you can maybe pass the liability to him. This is not, however, how people will hse generative models If you use Dall-E you are not paying OpenAI to buy the rights to a piece Dall-E has produced. I see it more akin to hiring a musician to play for you for an hour, or a painter to paint for you. You are paying OpenAI to paint you something, but you I think OpenAI would never enter a contract which states that they are selling you the rights to a work.

bnralt 3y ago

But none of the images in the article are for commercial use, they're for private use. So it would be akin to copyright laws saying "If you hire a guitar teacher, they can't play or teach you to play any copyrighted songs. All songs must either be their own original creation or in the public domain."

pier25 3y ago

The guitarist is not publishing the content, you are. It could be argued ChatGPT is a publisher too.

sjducb 3y ago

Ed Sheeran just won a case like this. He basically played the four chord song in court, and showed that the prosecutions’s song was “copying” an earlier song. https://amp.theguardian.com/music/2023/may/04/ed-sheeran-verdict-not-liable-copyright-lawsuit-marvin-gaye https://amp.theguardian.com/music/2023/may/04/ed-sheeran-ver...