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It doesn't matter. I could put a Getty watermark on anything. Getty would have to show that a generated image was at least in part the same as their image.
What is interesting is a human analogy. Say you were an artist who went to every art show and museum and studied all the art there. If you produced a work of art solely from memory that contained large portions of other people's copyrighted art, would that still fall under copyright/require licensing?
Earlier quoted context omitted.
Precedent in music says sometimes-yes. The "Blurred Lines" lawsuit found that Pharrell and Robin Thicke were liable in the tune of $7m for producing a work of art solely from memory that copied the "signature phrases, hooks, bass lines, keyboard chords, harmonic structures and vocal melodies" of a Marvin Gaye song. https://en.wikipedia.org/wiki/Pharrell_Williams_v._Bridgepor... https://www.npr.org/2015/03/11/39237539…
Yes, but that's an outlier ruling that was widely criticized.
What is interesting is a human analogy. Say you were an artist who went to every art show and museum and studied all the art there. If you produced a work of art solely from memory that contained large portions of other people's copyrighted art, would that still fall under copyright/require licensing?
Another human analogy could be: you take a photo from every art show and museum, and use those for reference as you paint.
My understanding of neural networks is that there are no remnants of the original inside it. The training data is used to back propagate a bunch of weights.
Your brain works like those neural network neurons; they learn when to fire, but they don’t know the intricate detail like a photo. Hence why many claim eyewitness testimony is bogus.
Yeah, I've seen an image get generated with a very recognizable watermark for a certain stock image company. This happened with a totally unrelated prompt.
What is interesting is a human analogy. Say you were an artist who went to every art show and museum and studied all the art there. If you produced a work of art solely from memory that contained large portions of other people's copyrighted art, would that still fall under copyright/require licensing?
yeah except this artist wont go around painting watermarks
https://www.moma.org/learn/moma_learning/andy-warhol-campbel...
(Yes I get it's not technically a watermark, but it certainly qualifies as a trade mark in a similar fashion)
> but surely you can't just... use stock photos without paying for the license? They aren't hosting the infringing content. Training on the data is probably covered under fair use. Generations are of _learned_ representations of the dataset, not the dataset itself. This makes it closer to outputting original works (probably owned by the person who used the model). The players involved here are known for being litigio…
"Probably" is doing a lot of heavy lifting in that sentence.
As for "_learned_", that's pretty debatable considering it's reproducing recognizable trademark infringement.
> The players involved here are known for being litigious, however. I wouldn't be surprised if OpenAI did in fact pay some hefty fee upfront to get full permission to use these images.
I have no idea why anyone would assume the "move fast and break things" disruption mindset that pervades tech companies these days, especially in spaces like ML/"AI", would mean they considered the legality, ethics, or good business sense of their training dataset.
As with Copilot, I suspect the DALL-E terms of use puts the onus on the user to avoid using infringing items.
Similar thing with GH Copilot. I'd say it is still fair use though, even though such things should be filtered out.
In the United States, there are two bits of case law that are widely cited and relevant: In Kelly v. Arriba Soft Corp (9th), found that making thumbnails of images for use in a search engine was sufficiently "transformative" that it was ok. Another case, Perfect 10 (9th), found that thumbnails for image search and cached pages were also transformative.
OTOH, cases like Infinity Broad. Corp. v. Kirkwood found that that retransmission of radio broadcast over telephone lines is not transformative.
If I understand correctly, there are four parts to the US courts' test for transformativness within fair use (1) character of use (2) creative nature of the work (3) amount or substantiality of copying (4) market harm.
I'd think that training a neural network on artwork--including copyrighted stock photos--is almost certainly transformative. However, as you show, a neural network might be overtrained on a specific image and reproduce it too perfectly--that image probably wouldn't fall under fair use.
There are also questions of if they violated the CFAA or some agreement crawling the images (but Hiq v Linkedin makes it seem like it's very possible to do legally) and whether they reproduced Getty's logo in a way that violates trademarks (are they trying to use it in trade in a way there could be confusion though?)