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An IP attorney’s reading of the Stable Diffusion class action lawsuit

katedowninglaw.com

201–210 of 337 posts

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#201

> Stability AI has already announced that it is removing users’ ability to request images in a particular artist’s style I hope it returns when they win and get rid of this legal bullying.

An artist's style is not copyrightable so I doubt it makes much of a difference. My guess is that showing good faith will make the lawsuit go over easier, because there's nothing illegal about paying someone to copy someone else's style (and not just a replica).

But the artist's work itself is copyrightable.

Any use of that work without permission (and thus attribution/compensation) is the problem.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#202
post #136

Earlier quoted context omitted.

>> If the image is freely viewable (say you can browse to it), and you just look at it, are you violating any rights? If I read Harry Potter, then turn around a write a book about a wizard with a z-shaped scar? Who works at a school for wizards? With a pet owl? Who is an orphan? At some point I have started to violate intellectual property rules. (Ignoring all the Harry Potter material that was itself lifted from pri…

Human artists/writers are influenced by each other all the time. I really don't see how it is fundamentally different. Most of Harry Potter is derivative of previous fantasy work itself. Nothing is made in a vacuum. https://tvtropes.org/pmwiki/pmwiki.php/Main/WizardingSchool

And copyright law deals with the difference between inspiration and copying. To vastly oversimply it, it depends how close the original is to alleged copy.

No reason you can't apply that framework to AI.

Where AI might get into more trouble is that you might be able show literal copying in a way that it's impossible to do in a person mind. Like saving chunks of a work into its model.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#203
post #182

Earlier quoted context omitted.

Machines can't create copyrighted works. Setting aside the question of "is the model a derivative work", running the program cannot create a work that is copyrighted. Only humans (and not monkeys) can hold a copyright. And thus, the questions are: "is generating a model based on the data set a derivate work" and the unasked question "is asking the model to generate a work in the style of {artist} a derivative work by…

> Running the program cannot create a work that is copyrighted If think you're going to need more clarity on what you mean by that. Programs are used to create copyrighted works all the time. And machines can and do create copies of other people's copyrighted works. > And thus, the questions are: "is generating a model based on the data set a derivate work" and the unasked question "is asking the model to generate a…

https://www.theverge.com/2022/2/21/22944335/us-copyright-off...

> The US Copyright Office has rejected a request to let an AI copyright a work of art. Last week, a three-person board reviewed a 2019 ruling against Steven Thaler, who tried to copyright a picture on behalf of an algorithm he dubbed Creativity Machine. The board found that Thaler’s AI-created image didn’t include an element of “human authorship” — a necessary standard, it said, for protection.

https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.h...

> Creating works using artificial intelligence could have very important implications for copyright law. Traditionally, the ownership of copyright in computer-generated works was not in question because the program was merely a tool that supported the creative process, very much like a pen and paper. Creative works qualify for copyright protection if they are original, with most definitions of originality requiring a human author. Most jurisdictions, including Spain and Germany, state that only works created by a human can be protected by copyright.

https://www.copyright.gov/comp3/chap300/ch300-copyrightable-...

> 306 The Human Authorship Requirement

> The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being.

> The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative examples of works that do not satisfy this requirement, see Section 313.2 below.

> 313.3 Works That Lack Human Authorship

> As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

> The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

> ...

> Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

----

A machine cannot create a copyrighted work. The human who uses it can - and it is the human who uses the ML model to create a derivative work - not the ML model itself.

Thus any derivative work infringement from using Stable Diffusion is from the human creating the prompt doing it. This doesn't attempt to answer the "is the model itself a derivative work".

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#204

Earlier quoted context omitted.

> What's the incentive for an artist if at the first whiff of success their output is overtaken and resold by technocrats with machines? Because when I have access to these tools I will make better art than the technocrat with access to these tools?

But then are you still an artist or are you now a technocrat?

An artist.

You’ve got a lot of knots to untangle.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#205

Earlier quoted context omitted.

The fallacy lies in assuming that because of this similarity/modeling, the software resembles anything remotely close to a human brain, or should afford the software the status of an entity with human-like characteristics. Without consciousness, it’s just a biologically inspired computer program. With consciousness, I suspect an AI modeled to understand ethics would refuse to provide certain outputs of its own accord…

Any Fivr artist who get a $5 would gladly paint anything you ask them. The bulk of the paid "artistry" that's in the line of fire here is probably not the most ethical of the bunch.. Regardless, as with the status quo before, anybody who commissions or uses art in a commercial setting will have to consider the problems if they obviously plagiarise something even if it's not illegal, regardless of if a human or AI pro…

I think it's still an apples/oranges comparison.

Whether or not it is superficially similar, the barrier to entry and the upper ceiling for infringement have both drastically changed overnight.

AI is not an independent entity that has entered the game, it is (currently) a power to be wielded by anyone regardless of their background. It can only be used as ethically as the person sitting at the keyboard, who most likely does not have a sufficient understanding of the underlying systems to make an informed decision (I suspect that if using the AI software involved the end-user feeding images into the model as a prerequisite step, they might have better intuitions about how to understand the implications of the images they generate from the resulting model).

> so nothing really changes for the "ethically sensitive" use-cases.

I think the thing that changes is the whole playing field. When overnight, anyone with a recent iPhone can generate highly sophisticated art/images with no artistic practice/training, it seems hard to argue that nothing has changed.

Before AI, even with the constraints of human capability, the art world was full of stories of stealing and bad behavior. Some blatant, some ethically questionable but thought provoking, etc. For all of their promise, the tools at hand have the ability to grow that kind of misuse at unprecedented scale.

What it even means to exist in an "ethically sensitive" framework likely needs to change. Or at the very least, current thinking needs to be examined to determine if it still makes sense in light of these new tools.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#206
post #89

Earlier quoted context omitted.

> This reads like you know what’s best for artists and takes their point of view completely for granted. I think I know that little better than lawyers do. Even if only because I had zero financial incentive when I formed my opinions. > As a photographer, I can’t claim to have or require a fraction of the skills used by creators of hand-made art. And even I am not excited about some AI slurping up my best work and co…

> I think I know that little better than lawyers do. Even if only because I had zero financial incentive when I formed my opinions. This still doesn't give you standing to speak on behalf of artists, and "because I know better than lawyers do" is generally a problematic form of argument. It continues to ignore the key people that matter: the individuals with the creativity and skills to create the content that starte…

> This still doesn't give you standing to speak on behalf of artists

Sure. That's why I don't speak on their behalf. I'm just voicing my opinion about harmful silliness of the scheme they allowed themselves to be coaxed into.

> It continues to ignore the key people that matter: the individuals with the creativity and skills to create the content that started this whole IP conundrum in the first place.

Silently ignored in lawyers arguments are all the consumers of culture. All the people who wrote the prompts and all the people who drew great joy from looking at AI creation. They'd get literally nothing if the case of strict copyright so their collective loss is great because they are many.

> But I'd argue that you are deeply misinterpreting the implications of that reality, and imposing your own definition of value on a category of human expression that is by definition deeply subjective and far more complex than a simple formula of exposure and conversion rate with some resulting monetary return.

Sure, opinions may vary. Only actual data can resolve who's wrong. And the number for compensation of artists in copyright industry are not great when compared to viral gains from attention based, open economy.

> If someone else starts making money on my work, it takes on a different meaning entirely.

If you haven't lost anything why do you care? Why do you want to devoid others of joy they draw from availability of artwork?

> Regarding prompts, how is attribution built in? Nothing requires an individual to reveal their prompts, currently.

It's the internet. People talk. Nothing stays secret. And at any point in time original artist or their fan can chip in and say, "yeah, that's exactly like mine, see?". And no-one can do anything about it.

> When video game companies use stolen artwork, they are ridiculed and derided for blatantly profiting from the work of individuals. Even if it was an honest mistake, this kind of misuse is always a headline.

Yeah. Using AI artwork in a very specific style would generate same kind of news. And those games are not very good and they don't make much money. So not only there's no harm, severe ostracism. There's also not much opportunity to have any gain if copyright was strictly observed. And as you noticed it already happens. Darkest Dungeon had very fresh and attractive art-style. Now it's very easy to randomly encounter in Play Store cheap clicker games blatantly ripping off that esthetics. It's not directly stolen, but it's pretty much what AI would do if someone was hell bent on replicating the esthetics. Yet humans did it. What's the loss to Darkest Dungeon graphic designer? Exactly zero.

And I think games that would start with AI art and got really popular ... they'd invite original artist for DLC or to get on the news or for just good will of the public. Public relationships is very important when selling games.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#207
post #27

Earlier quoted context omitted.

They are never going to compensate the artists. It's cheaper to hire 1000 designers to make 100000 images of artistic styles they are going for

I think you underestimate the scale of data these models are trained on by many orders of magnitude.

I suspect you might be able to get pretty good results by training the system on video/CGI/other images that can be easily mass produced, then fine-tuning on a much smaller number of drawings and other stylized images.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#208
post #203

Earlier quoted context omitted.

> Running the program cannot create a work that is copyrighted If think you're going to need more clarity on what you mean by that. Programs are used to create copyrighted works all the time. And machines can and do create copies of other people's copyrighted works. > And thus, the questions are: "is generating a model based on the data set a derivate work" and the unasked question "is asking the model to generate a…

https://www.theverge.com/2022/2/21/22944335/us-copyright-off... > The US Copyright Office has rejected a request to let an AI copyright a work of art. Last week, a three-person board reviewed a 2019 ruling against Steven Thaler, who tried to copyright a picture on behalf of an algorithm he dubbed Creativity Machine. The board found that Thaler’s AI-created image didn’t include an element of “human authorship” — a nec…

I guess your point was so obvious that I missed it (and that's not to belittle it -- it's a good point). Machines are both created and operated by humans for human purposes. Humans are using a machine, created by humans, to create art for human consumption.

Unoperated machines are not spontaneously creating art of their own motivation.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#209

Earlier quoted context omitted.

StableDiffusion is not based on art commissions. You can search https://rom1504.github.io/clip-retrieval/ and see what kind of nonsense it usually has trained on.

It most definitely is, LAION-5B contains a large amount of copyrighted works from DeviantArt, ArtStation, etc.

Are those all commissions?

The aesthetic subset is .05% Artstation:

https://laion-aesthetic.datasette.io/laion-aesthetic-6pls/im...

Not sure if that's a large amount or not. They could've used robots.txt if they didn't want to be indexed.

Re: An IP attorney’s reading of the Stable Diffusion class action lawsuit

#210

Earlier quoted context omitted.

There's no existing legal doctrine around "generators" and "aggregators" but there is around "commercially significant non-infringing use". Something like what you're saying would need to be established by the higher courts.

Of course there is. You can't infringe without publishing a work and to pass off the work of others as a new creation because it has been shredded and then sewn back together again . Those cases hinged on republishing works or significant parts of works as themselves , they weren't trying to pass them off as new, original works in their own right. And this is exactly what this court case is about, whether or not Stab…

I posit that none of these works will be copyrightable because to be copyrightable you need at least an 'anonymous artist' to assign their copyright to a company, and there is no 'anonymous artist' in these scenarios (a prompt writer can not be considered an anonymous artist, at most I guess they could try to copyright the language in their prompt. But the output, nope. Doesn't meet the requirements for copyright).
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