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AI-assisted art – A mixed decision from the copyright office

processmechanics.com

21–30 of 64 posts

Re: AI-assisted art – A mixed decision from the copyright office

#21
post #5

> I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph. I think this is shortsighted; this opens up a sp…

Is a photograph of a painting itself copyrighted? Img2img or controlnet can basically do that, in less than 30 seconds. Even as someone extremely pro-AI art, I don't think AI-generated content should have copyright in the usual sense. Every art model was trained on massive amounts of copyrighted data, it would be very hypocritical to suddenly claim strong copyright on the output of AI generated items. I think AI gene…

A photo that tries to capture an existing painting as closely as possible is not copyrightable.

However, even minor changes (such as changing the tint of the photo) have been found to be enough for copyrightability.

Re: AI-assisted art – A mixed decision from the copyright office

#22
post #12
post #5

> I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph. I think this is shortsighted; this opens up a sp…

> I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. That seems extremely unlikely to make any sense given that the random seeds in question would be, what, FP32 or FP64 by default? So that's 4 billion random seeds per prompt. Bett…

Yes, but that’s the point isn’t it?

Why not copyright them all?

Sure, it’s irritating, and troll behaviour; but that’s literally what patent trolls do right?

Re: AI-assisted art – A mixed decision from the copyright office

#23

> First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human. if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and some…

The prompt is not a creative expression, it's more like a cooking recipe, hence is not copyrightable.

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Re: AI-assisted art – A mixed decision from the copyright office

#25

> First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human. if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and some…

How about more complex prompts?

If "print 'hello world'" is not copyrightable does that imply that more complex programs are also not copyrightable?

> "elephant with blue skin" or any other prompt

I don't buy it. The space of prompts is pretty big just at the length of a few lines. You'll find guides and how-tos on how to write the prompts you want, seems quite the complex and creative endeavour to me!

Re: AI-assisted art – A mixed decision from the copyright office

#26

> First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human. if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and some…

> if the input is a prompt that anyone can write Pressing the button, on an already setup camera, is something that anyone can do as well, and they will get the exact same camera output as anyone else.

To be clear, pressing a button is not copyrightable.

The decision about where to take a picture, what settings to use, and how to take it is the creativity that grants the image copyright. There are various arguments about which parts of prompt generation and refinement might register as copyright and there are various arguments about how tuning settings and tuning prompts is similarly creative to using a camera, but the point is still that unless the user input is sufficiently creative, the image wouldn't get copyright. The button doesn't matter; the button is not what gives you copyright.

In fact, numerous accidental photos have been denied copyright; most famously when PETA sued a photographer over a picture that was taken when a monkey stole the photographer's camera. The court's decision was that nobody owned the photo. It was an accident, it wasn't the result of a creative decision. There was not enough human creativity involved in the process of a monkey stealing a camera to warrant protection.

Of course, it's somewhat of an oversimplification of prompt engineering to phrase it as just saying "elephant with blue skin", but if that was the entire creative input, it's not clear at all to me that someone saying "I want an image of an elephant with a blue skin" is a sufficiently creative input that it should be copyrightable. What the AI does with that prompt is irrelevant, it's the human creativity that matters. Same with photography; the camera isn't really the important part. The machine isn't what is generating the copyright. The person making a conscious decision about where to stand, what settings to use, and when to press the button is viewed by the law as a creative act that requires creative skill and execution. The button press itself doesn't matter.

Again, to be clear, prompt generation tends to be oversimplified in these conversations and I'm not saying there's definitely nothing creative happening, but if we take that simplified version of prompt generation at face value, then just saying what image you want... does that really meet a creative standard?

Because saying that descriptions/requests on their own are sufficiently creative for copyright protection has implications far beyond AI art; it implies that commissioning a piece of artwork even from a human being should be enough of a creative act that I should get joint copyright over the final image. If the argument is that prompt generation is more than that, and that it takes more skill, then fine -- but if the argument is that even just a one line description of what image you want should be counted as creative... yeah, that's a pretty significant expansion of copyright that will affect a lot more than just AI art.

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Edit: I think people also get a little confused about the difference between how people generally treat photography and what the law would decide if the copyright on every single image was challenged.

If I set up a camera mounted to a pole, focused on a static scene, and you walk over and press the button on the camera, legally you very likely don't have any copyright over that image. But practically, nobody is going to challenge you over it.

It's possible that some of the photographs where people say, "well that gets copyright, why doesn't mine?" might not actually get copyright if they were ever challenged. But people generally don't challenge copyright status in the first place. Recipes, APIs, monkeys, (and apparently now AI images) are the rare exceptions.

Re: AI-assisted art – A mixed decision from the copyright office

#27
post #5

> I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph. I think this is shortsighted; this opens up a sp…

Is a photograph of a painting itself copyrighted? Img2img or controlnet can basically do that, in less than 30 seconds. Even as someone extremely pro-AI art, I don't think AI-generated content should have copyright in the usual sense. Every art model was trained on massive amounts of copyrighted data, it would be very hypocritical to suddenly claim strong copyright on the output of AI generated items. I think AI gene…

> The ones with significant amounts of attention, post-editing, and economic value, the AI artist can simply register at the copyright office.

Even leaving aside that some people think coming up a prompt or choosing from multiple generated images is itself work enough to justify copyright you'll have so many very similar images registered that copyright trolls could still intimidate people into forking over settlement money and people would still argue that even the smallest changes (say to brightness level/saturation) justifies their copyright.

Leaving AI generated works free from copyright would be ideal, since it'd free those images for others to build off of and remix and reuse in new ways, it encourages commercial projects to hire human artists so that they can gain the protection of copyright, and it doesn't stop anyone from doing what they want with the technology. Comic book authors who illustrate their work using AI can still copyright their stories, trademark their characters, etc.

Re: AI-assisted art – A mixed decision from the copyright office

#28
post #21

Earlier quoted context omitted.

Is a photograph of a painting itself copyrighted? Img2img or controlnet can basically do that, in less than 30 seconds. Even as someone extremely pro-AI art, I don't think AI-generated content should have copyright in the usual sense. Every art model was trained on massive amounts of copyrighted data, it would be very hypocritical to suddenly claim strong copyright on the output of AI generated items. I think AI gene…

A photo that tries to capture an existing painting as closely as possible is not copyrightable. However, even minor changes (such as changing the tint of the photo) have been found to be enough for copyrightability.

AI is far more productive, and easier in modifying source pictures, than photography. Controlnet is not a mere tint, it can generate 20 artstyle variations of the source image in 30 seconds. No artist will have any income if this those AI outputs are copyrightable without cost.

I don't think past-decisions are that important here. There'll definitely be new laws around AI generated content, that set clear standards. Those standards have to consider the social impact of copyright and the livelihood of artists. The whole point of copyright is not some abstract golden moral standard, but something that keeps artists and writers employed.

That's why I think pay-for-copyright is the best balance in terms of liberty for AI art but preserving the incomes of traditional artists.

Re: AI-assisted art – A mixed decision from the copyright office

#29

Earlier quoted context omitted.

Is a photograph of a painting itself copyrighted? Img2img or controlnet can basically do that, in less than 30 seconds. Even as someone extremely pro-AI art, I don't think AI-generated content should have copyright in the usual sense. Every art model was trained on massive amounts of copyrighted data, it would be very hypocritical to suddenly claim strong copyright on the output of AI generated items. I think AI gene…

> The ones with significant amounts of attention, post-editing, and economic value, the AI artist can simply register at the copyright office. Even leaving aside that some people think coming up a prompt or choosing from multiple generated images is itself work enough to justify copyright you'll have so many very similar images registered that copyright trolls could still intimidate people into forking over settlemen…

"it encourages commercial projects to hire human artists so that they can gain the protection of copyright"

How is this relevant to AI copyright?

If AI art is copyrightable, they'd still need someone to generate the AI art. That person is an 'artist' in the legal sense, regardless if they can draw or not. If AI art is not copyrightable, they can still hire a non-artist (fully outsourcable), to do some minor post-editing of the AI art, and copyright it.

Re: AI-assisted art – A mixed decision from the copyright office

#30
post #2

It is so unusual to see clear and precise analysis on this topic. I particularly appreciate this turn of phrase, describing what Stable Diffusion does: “pull from an artist-chosen place in its massive table of probabilities to drive the generation of an image.”

Yes, but I mean it's also wrong... That's not how the diffusion process works. You can pick any number of interesting ways to describe it but if they're technically wrong, it doesn't really matter how poetic they are right? Diffusion models do use random noise. As I understand it, every 'step' is composed of three parts: a) the previous output, b) the latent generated from the prompt and c) random noise. As you move…

The sentence you quote is the beginning of a paragraph that ends with “There is random noise, but the visual layer evolves the final image from the noise based upon the latent ’meaning’ in the prompt”… which is in complete agreement with what you’re saying? It certainly isn’t saying diffusion models don’t use random noise. It has the phrase “there is random noise”, that is just wholly incompatible with that claim.

Perhaps that first sentence could be more precise, but by the end of the paragraph the author’s meaning is clear: the court has a misunderstanding about the “randomly generated noise” when it believes there is randomly generated noise in both the pixel and the latent - this is not the case, there is no randomness in the latent, that exact handcrafted prompt picks out a precise spot in the model’s giant table of embeddings, that prompt will always pick out that spot in that model, and the random noise is only on the pixel side of things. The author believes the court has this misunderstanding because the court uses the analogy of “a patron makes a suggestion to an artist”, which is a scenario that DOES have random noise involved in producing the latent (the brain is an inherently noise place; an artist’s brain likely even more so).

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