An artist who infamously duped an art contest with an AI image is suing the U.S. Copyright Office over its refusal to register the image’s copyright.
In the lawsuit, Jason M. Allen asks a Colorado federal court to reverse the Copyright Office’s decision on his artwork Theatre D’opera Spatialbecause it was an expression of his creativity.
Reuters says the Copyright Office refused to comment on the case while Allen in a statement complains that the office’s decision “put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work.”
You have to be the creator of the work in order to copyright it. He didn’t create the work. If the wind organized the leaves into a beautiful pattern, he couldn’t copyright the leaves either.
Weirdly enough the monkey selfie probably establishes some precedence here, https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
You could copyright a photograph of that leaf pattern though, couldn’t you?
but its just a photocopy of the leaves, not the actual leaves. And to photograph something, you capture it according to your will. What will be the light situation, from which angle, at what focal length,… so many options.
This is getting weird.
If I would generate an image with an AI and then take a photo of it, I could copyright the photo, even if the underlying art is not copyrightable, just like the leaves?
So, in an hypothetical way, I could hold a copyright on the photo of the image, but not on the image itself.
So if someone would find the model, seed, inference engine and prompt they could theoretically redo the image and use it, but until then they would be unable to use my photo for it?
So I would have a copyright to it through obscurity, trying to make it unfeasible to replicate?
This does sound bananas, which - to be fair - is pretty in line with my general impression of copyright laws.
You can copyright a combination of words, though, and it was his unique combination that created the art. The artist doesn’t copyright the palette, and the shop that sold the pigments holds no ownership over the painting. If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
It has to be fixed in a tangible medium.
In this case they’re not “fixing” their words and the final art is the created expression. Yet in this case their created expression wasn’t created by them but the program.
In this case their combination is the palette and paint but the program “interpreted” and so fixed it.
For example you can’t copyright a simple and common saying. Nor something factual like a phone book. Likewise you can’t copyright recipes. There has to be a “creative” component by a human. And courts have ruled that AI generated content doesn’t meet that threshold.
That’s not to say that creating the right prompt isn’t an “art” (as in skill and technique) and there is a lot of work in getting them to work right. Likewise there’s a lot of work in compiling recipes, organizing them, etc. but even then only the “design” part of the arrangement of the facts, and excluding the factual content, can be copyrighted.
Using stuff like controlnet to manually influence how images are shaped by the ML engine might count, there’s some great examples here (involving custom Qr codes)
In general these art pieces are not created simply with words. Users control the output using ControlNet which allows drawing on the image to force regeneration only to specific areas. It seems that if your only logic around it being non-copyrightable is due to them using words and that the program “does it all”, but that’s just not how it works.
I’m not in favor of copyrights for stuff like this, but you have a terrible misunderstanding of how these art pieces are created and it’s affecting your argument negatively.
You cannot copyright a recipe, but you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.
Can a person who works with wood and creates something unique from the wood then copyright their design crafted from the wood? What makes it art and not just glue, iron nails, and dead trees? This is what needs to be defined with AI. Right now everyone is so happy to jump on the anti-AI bandwagon that they blind themselves to issues regarding the law by claiming the art is lawless at best and stolen at worst, when in fact it is simply a new tool and a new medium.
Did authors who used typewriters rail against the new word processor? What about the editor that checked for grammar and spelling? Did they try to burn down spell and grammar checks in microsoft word? Is the art any less art if it has been created with a tool that allows for more ease than has been available in the past? Should we boycott the bakers that do not mill their own wheat? Or does the sourdough bread belong to the wild yeast cultures, and so owed recompense for all we have taken from it?
The argument can be made until the universe burns out, or we can accept that art is made by sentient life, and any tool used in the production of it cannot be considered an owner of that art, and if the only sentient lifeform involved in the creation of that art wishes to claim it as their own, then they should have the right to protections for their work.
It has to be fixed in a tangible medium.
Hard disks are pretty tangible.
But if they are not as you suggest, does this mean all digital photography is not copyright able?
So many arguments as to why this shouldn’t be subject to copyright seem to fail simple questions of logic.
If the output of ML isn’t copyright able, then the inputs should not be subject to copyright either. The whole system is broken and only serves to enrich the few at the expense of the many. It doesn’t protect the small time artists, only the exceptionally wealthy ones who earn more than the typical worker will make in many lifetimes.
If I use a combination of words to commission an artist to paint a picture, I don’t own the copyright on that picture.
If it’s a commission, you might. Depends on the how the contract is worded.
You can copyright a combination of words, though, and it was his unique combination that created the art
so its literature, then?
The artist doesn’t copyright the palette, and the shop that sold the pigments holds no ownership over the painting.
Sure, the artist doesn’t copyright a palette, or the shop does not hold ownership of pigments. But Companies do patent pigments.
If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
If you commission an Art piece, with a detailed description of what it should display. The artist comes back to you with a draft, you tell them to adjust here and there, and you finally after several rounds of drafting got the commissioned art piece. Did you draw it?
Thats what LLMs do and nothing else.
Is the diction of the buyer to the artist in the final paragraph of your argument make the painting a novel? You have you answer.
Yes, companies can copyright specific pigments, but that doesn’t give them ownership over the paintings created by them, only protect for their own IP vis-à-vis the pigments. In the same way, the company that created the LLM may protect their work but hold no ownership on the art it produces.
Who drew the art is of no import when the artist isn’t a sentient lifeform. By your definition, a photographer cannot own a picture because the camera captured it.
the final product belongs to the artist, and so should be protected by law for them.
Then the real artist, the AI, should request the copyright. And sue the charlatan that tried to take its work and claim all credit.
And the camera owns the photograph, and Photoshop owns the digital image, and Final Cut Pro owns the film? The tool owns nothing. The tool is incapable of ownership
Yes, you could. BTW I just took a screenshot of your comment so it’s mine to copyright.
I mean, literally yes, though?
Like, it’s not meaningful at all, but yes, it’s copyrightable.
If I made an image in photoshop, the computer made it, I just directed it.
How is AI different?
And that’s why I make art completely without instruction or man made tools. I actually independently developed cellphones and English purely to dunk on people on the internet.
I’m being honest, I get that they are not the same, I just don’t understand why the line is drawn with AI, Why wasn’t it drawn with photoshop?
AI Prompt User is complaining people stealing their artwork? Well that’s new.
If you didn’t make it, how the fuck can it be stolen from you?
He spent weeks on fine tuning tbf
It’s like photography: Photographers often spend weeks trying to get the perfect shot, should they be allowed to copyright it?
It absolutely takes training to familiarize yourself with the model and get the results you want.
Copyright or not doesnt change time and effort that can be spent on prompting. Theres no reason to have an objective stance against people that want to explore it.
Yes, photographers, who held their camera, who spent years honing their craft, learning the ins and out of the art of photography, who put their bodies in the field to capture real life, yes, they should be able to copyright their work.
Pull out your phone. Open the camera app. Click the button. You just did an art.
Another thought experiment: If I hire an artist and tell them exactly what they should draw, which style they should use, which colours they should use etc does 100% of the credit go to the artist or am I also partly responsible?
Normally, if you’re commissioning a piece of art for commercial purposes, you would have some sort of contract with the artist that gives you the copyrights. Otherwise, the copyright belongs to the artist that produced the work, even if you buy the product.
If I order an art piece by someone, and reject thousands of finished pieces for it to not meet my standards, will i become an artist?
If I take lots of photos, print out and frame one of them but delete the others, will I become an artist?
“I have been exploring a special prompt that I will be publishing at a later date, I have created hundreds of images using it, and after many weeks of fine-tuning and curating my generations, I chose my top three and had them printed on canvas,” he writes.
its debatable who the artist is, however, because if you remove the ai from the picture he could never have made this, and if you remove the training data the results would also be different.
Realistically: everyone whose data this was trained on should be included as authors if its not just public domain
There were similar debates about photographs and copyright. It was decided photographs can be copyrighted even though the camera does most of the work.
Even when you have copyright on something you don’t have protection from fair use. Creativity and being transformative are the two biggest things that give a work greater copyright protection from fair use. They at are also what can give you the greatest protection when claiming fair use.
See the Obama hope poster vs the photograph it was based on. It’s to bad they came to an settlement on that one. I’d have loved to see the courts decision.
As far as training data that is clearly a question of fair use. There are a ton of lawsuits about this right now so we will start to see how the courts decide things in the coming years.
I think what is clear is some amount of training and the resulting models fall under fair use. There is also some level of training that probably exceeds fair use.
To determine fair use 4 things are considered. https://www.copyright.gov/fair-use/
1 Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
This is going to vary a lot from training model to training model.
Nature of the copyrighted work.
Creative works have more protection. So training on a data set of a broad set of photographs is more likely to be fair use than training on a collection of paintings. Factual information is completly protected.
-> Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
I think ai training is safe here. Once trained the ai data set usually doesn’t contain the copyrighted works or reproduce them.
Effect of the use upon the potential market for or value of the copyrighted work.
Here is where ai training presumably has the weakest fair use argument.
Courts have to look at all 4 factors and decide on the balance between them. It’s going to take years for this to be decided.
Even without ai there are still lots of questions about what is and isn’t fair use.
Hmmm. This comment made me realize that these ai images have something in common with collages. If I make a collage, do I have to include all the magazine publishers I used as authors?
Not defending the AI art here. Imo, with image generating models the mechanisms of creation are so far removed from the “artist” prompter that I don’t see it any differently than somebody paying an actual artist to paint something with a particular description of what to paint. I guess that could still make them something like a director if they’re involved enough? Which is still an artist?
I dunno. I have my opinions on this in a “I know it when I see it” kind of way, but it frustrates me that there isn’t an airtight definition of art or artist. All of this is really subjective
if you make a magazine collage you’ve already paid all the magazine authors for their work by buying the magazine. I know its not perfect, but at least in a collage situation there is some form of monetary trail going back to the artists.
If the AI company were to license their training data this would be an almost perfect metaphor. But the problem is we’ve let them weasel in without monetary attribution.
It comes down to how transformative the work is. They look at things like how much of the existing work you used and how much creative changes were made.
So grabbing your 9 favorite paintings and putting them in 3x3 grid is not going to give you fair use.
Cutting out sections of faces from different works and stitching them together into a franken face could give you enough for fair use if you made it different enough.
No but you don’t get it, they wrote a couple words and also they know how to use the spot healing brush in photoshop, they’re a REAL artist!
everyone whose data this was trained on should be included as authors if its not just public domain
Weird how we make this rule only apply to computers.
I doubt any human artist would make the exact same works as they have if they were not influenced by the art that they were.
So you’re saying the AI should own the things it makes?
Broken analogies aside, The twin major problems are
-
most the data is still intact that AI often recreates it. I think court cases about this are ongoing.
-
It breaks authorship chains. humans often have to wade through ads or buy products to ‘add data’ to themselves. So if you buy a magazine, you often contribute back to the source artists. or even cite them. AI does not do this. Which is why licensing datasets is a proposed solution to prevent AI from being a death spiral for creativity.
It’s a bit more nuanced than that, because a human can still develop artistic skills by observing non-artistic creations beforehand.
For instance, the world’s very first artist probably didn’t have any paintings or sculptures to build off.
I’m not saying I necessarily agree that the person isn’t an artist because they rely on external training data, but generative AI models most certainly need to observe other works to ‘learn’ how to make art, whereas humans don’t necessarily have to. (Although if someone were to make a reinforcement learning model based on user feedback as a way to entirely generate better and better images starting from random variation, that would make the original training data point moot)
“”“Artist”“”
