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

processmechanics.com

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

#41

Earlier quoted context omitted.

> 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" Nobody will ever know if a human was involved or not.

That is kind of a problem if companies are fine with lying, or hiring an artist willing to lie and claim they created something, just to get copyright protection. I can't say for sure that we'll have (or always have) some means of telling if something was created by AI or not.

Removing AI generated works from copyright entirely means that if you can demonstrate your work was created by AI you wouldn't have to worry that it violates someone else's copyright. People would be free to use the technology for whatever they wanted as long as they were willing to give up the idea of copyrighting whatever the output was.

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

#42
post #15
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…

The USCO also gave their justification: not enough human input in the process of creation to justify a copyright. After all, what is the point of copyright? To protect the interest of human creators. Human creators get exclusivity on their own ideas in exchange for sharing them with the world. This deal breaks down if there is no effort involved in creating the works.

As a technical artists, dabbling with AI, I can tell you that it takes a lot of time an effort to generate prompts, asses the quality of the generated images, curate collections of images to be in the same art style. I haven't even started trying to work out how to get the same characters in different pictures.

If I wanted the look of my product to be "ball point pen on post-it note" it would have been a lot less work and effort and it would get copyright protection.

Effort is the wrong measure.

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

#43
post #15
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…

The USCO also gave their justification: not enough human input in the process of creation to justify a copyright. After all, what is the point of copyright? To protect the interest of human creators. Human creators get exclusivity on their own ideas in exchange for sharing them with the world. This deal breaks down if there is no effort involved in creating the works.

[deleted]

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

#44
post #15
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…

The USCO also gave their justification: not enough human input in the process of creation to justify a copyright. After all, what is the point of copyright? To protect the interest of human creators. Human creators get exclusivity on their own ideas in exchange for sharing them with the world. This deal breaks down if there is no effort involved in creating the works.

> After all, what is the point of copyright? To protect the interest of human creators.

Sorry if I’ve missed your point here, but the purpose of copyright in the United States, as written in its constitution, is to promote the progress of science and useful arts[0], not to protect the interests of creators. The exclusive license to creators is a means to an end.

[0] https://en.wikipedia.org/wiki/Copyright_law_of_the_United_St...

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

#45

What's the argument for why prompt generation deserves copyright protection that doesn't also imply that commissioning a piece of artwork deserves copyright protection? If I go to a human and ask them to draw me an image, I will iterate and collaborate with my prompt just as much if not more than I would for an AI generated image. I'll look through multiple pictures and point out things I like and dislike. But I won'…

I always assumed that Midjourney, the company running the application, owns the copyright (if there was any) and that they assign it to you when they hand you back the image. The website is fairly circumspect around the whole issue as you can imagine.

It's not that different to a company paying artists.

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

#46

> 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…

At any rate, "elephant with blue skin" is a fairly basic prompt. You can go into excruciating detail with prompts spanning many many paragraphs, specifying lighting, perspective, positioning, colors, clothing, styles, patterns, etc etc etc.

Within a given domain, if you are very exacting with your prompting and start doing things like adding in weights, you can do things like eg. create portraits of your friends, or of characters you've imagined, or basically make things that you can either see or imagine.

There's a new problem though. You can easily make a picture of 1 thing/person/concept, but if you have more than one, they share the prompt.

Say you have an ever so slightly modded Stable Diffusion checkpoint, and say you want a picture of a

  1boy with short_hair, 1girl with (long_hair:1.3)
Now these instructions are fighting each other. If you run a batch, you'll get

* a few images with what you thought you wanted (a boy with short hair and a girl with long hair),

* in some cases you'll get a boy and a girl both with long hair (because the long_hair:1.3 overrides)

* and in some cases you'll get a single person, who happens to have long hair (because of the long_hair:1.3) , and who is more likely to be female (because of implication: long hair was more commonly associated with females in the original dataset).

Of course, if you're smart, you might think to exploit this ambiguity on purpose.

On the gripping hand, this is obviously insufficient control.

So now we're getting newer systems that allow you to chain/layer prompts and apply different prompts with different strengths to different domains of your illustration. This means that you can have eg. your male character on one side, the female character on the other side, and deal with things like room decoration, the view from the window, and specific props - all with separate prompts.

And this is just applications of txt2img. There's also things like img2img, inpainting, and... well... new tools are showing up every week it seems.

If this hasn't crossed back into the creativity sphere already, it probably will by next month, and else the month after. (By manner of speaking)

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

#47

What's the argument for why prompt generation deserves copyright protection that doesn't also imply that commissioning a piece of artwork deserves copyright protection? If I go to a human and ask them to draw me an image, I will iterate and collaborate with my prompt just as much if not more than I would for an AI generated image. I'll look through multiple pictures and point out things I like and dislike. But I won'…

I always assumed that Midjourney, the company running the application, owns the copyright (if there was any) and that they assign it to you when they hand you back the image. The website is fairly circumspect around the whole issue as you can imagine. It's not that different to a company paying artists.

> I always assumed that Midjourney, the company running the application, owns the copyright

In a way that's even worse; building a tool that someone else uses to produce a creative work shouldn't grant the original builder copyright over the user's output. That would also have a ton of implications beyond AI.

It's bad enough that many software tools come with license agreements around their usage that reassigns copyright and restricts output, but at least in those cases the agreement rests on a license that the user is signing to get access to the tool. But we wouldn't claim that the person who's made an artist's paints owns the painting made with them.

> The website is fairly circumspect around the whole issue as you can imagine.

I remember it making the news when one of the companies in the imagegen space (I don't think it was Midjourney, but it might have been) said that users would keep copyright on images they made, and I remember similarly thinking at the time, "well, that's very nice of you but I'm pretty sure that's not your decision to make."

But agreed, I think that the company is probably not going to go out of their way to really clarify how much IP control they think they have over what other people do with their tool.

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There's implications beyond AI to saying that AI images are copyrightable, but I think they're small potatoes compared to the implications of saying that inventions confer copyright of artwork made with inventions back to the inventor, even if someone else was using the invention to create the artwork.

When studios pay artists, they don't get copyright, the artist does. The studio gets copyright if they think ahead and make the artist sign a contract to assign their copyright over. And negotiation over assigning copyright is part of the payment process and contract process, the studio doesn't get that for free.

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

#48
How about this for a completely new take on copyright.

The amount of money you can make via copyright protection should be in direct correlation to the amount of effort that went into generating the creative work.

If you type a prompt into a machine and it spits out an image. 30 seconds of work, copyright will protect you until you have made a reasonable profit for your time.

If a movie company puts 10000 person months into a big blockbuster, copyright will protect them until the move has made a reasonable profit.

If you choose never to monetize an artwork, it remains in copyright for the maximum time.

I have no idea how you would value a photographer being in the right place at the right time.

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

#49
post #44
post #15

Earlier quoted context omitted.

The USCO also gave their justification: not enough human input in the process of creation to justify a copyright. After all, what is the point of copyright? To protect the interest of human creators. Human creators get exclusivity on their own ideas in exchange for sharing them with the world. This deal breaks down if there is no effort involved in creating the works.

> After all, what is the point of copyright? To protect the interest of human creators. Sorry if I’ve missed your point here, but the purpose of copyright in the United States, as written in its constitution, is to promote the progress of science and useful arts[0], not to protect the interests of creators. The exclusive license to creators is a means to an end. [0] https://en.wikipedia.org/wiki/Copyright_law_of_the_…

> The Congress shall have Power [...] to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

That sounds like protecting the interests of human creators so they keep creating, to me at least.

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

#50
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…

Yes, a photograph of a painting is copyrighted, but it is also a derivative work.

If you want to read more about, it I recommend Legal Handbook for Photographers ( https://www.amazon.com/Legal-Handbook-Photographers-Rights-L... ) and note that this isn't just a random person writing a book...

> Bert P. Krages, Esq., is an attorney who specializes in intellectual property. He is the author of "Handbook for Photographers" and "Heavenly Bodies "and Photography: The Art of Composition"

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Registering works is "pay to register" and has been for some time. Though you can do it in bulk.

https://www.copyright.gov/registration/visual-arts/

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My takes on your examples:

Img2img : The AI created art is a derivative work of the source image. By itself it is not copyrightable as there is no human creativity at work.

Txt2img : The text prompt is copyrightable, though that's rather boring. The AI art generated by it is a derivative work of the text prompt and is not copyrightable.

Post processing : Just as DuChamp's L.H.O.O.Q. was copyrightable in its day and the source material for it was not (the work of an old master), so to the human modified image that was original AI (and uncopyrightable) is now a work that can be copyrighted.

Note that these are my interpretation of current copyright law and (to me) seem rather reasonable. See https://www.copyright.gov/comp3/chap300/ch300-copyrightable-... sections 306, and 313.2. Changing this is a change in the law (e.g. need congress to do it) rather than a change in how the copyright office interprets the law.

Copyright office funding : https://www.copyright.gov/about/budget/2022/house-budget-tes... aside from managing the capital request to implement the CASE act, they are already pretty much self funded from royalties and fees.

Consider also the painting "Edmond de Belamy" and the surrounding debate. https://en.wikipedia.org/wiki/Edmond_de_Belamy . While this isn't the final say, you can be sure that lawyers have looked at it - https://commons.wikimedia.org/wiki/File:Edmond_de_Belamy.png and note the licensing section and its link to the UK copyright office - https://www.gov.uk/government/consultations/artificial-intel... ... and that copyright in the UK is based on sweat of the brow (which was rejected with Feist v. Rural Telephone Service in 1991 in the US to instead apply original works of authorship)

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