6 ms·

One positive aspect of the status quo in the United States is that AI-generated images are not currently eligible for copyright. I think this is a great directi

by thurn 3y ago

One positive aspect of the status quo in the United States is that AI-generated images are not currently eligible for copyright. I think this is a great direction to go in, I highly doubt Wizards of the Coast or whoever is going to want their premium products to lose copyright protections, so they'll need to keep paying artists. I'd love for us to lean into this -- you can make all the AI art you want, but it automatically gets a Creative Commons ShareAlike-style license!

nothercastle 3y ago
I do wonder if its a fruit of the poisoned tree argument and any AI derived work can’t be copyrighted because it used already dubious source material.
- kmeisthax 3y ago
  No, it's a Butlerian Jihad[0] argument. The Copyright Office's argument holds even for a fully public domain training set. US copyright law is already speciesist[1] - you can't assign authorship to an animal - so computers are also forbidden from authorship. [0] In the Dune universe, the "Butlerian Jihad" refers to a legal ban on thinking machines. [1] https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
  - bart_spoon 3y ago
    Seems like that only applies if you anthropomorphize the AI and consider it the author, rather than a tool utilized by the artist. I mean, yes, the AI is doing the bulk of the work, but so is photoshop for a lot of digital art.
    - kennywinker 3y ago
      Photographs can be copyrighted, and all the human did was aim and press a button. Oh, and potentially travel to specific locations, adjust parameters, choose lenses, stage a scene, makeup, wardrobe, lighting, etc. etc. But none of those things are required for the image to be copyrighted
  - tavavex 3y ago
    I'm not really sure how this connects to the argument. No one is trying to grant authorship to an algorithm - it would be a ridiculous effort that was never even in the cards. In these copyright disputes, the authorship on AI outputs would be on the person using the AI. Generative AI takes inputs that are provided by a human and transforms it into certain outputs. Legally speaking, I don't see it as different from me getting protection for something I did in Photoshop - trying to somehow give Photoshop authorship would be absurd.
    - kmeisthax 3y ago
      The Copyright Office wrote their guidance specifically because someone tried to register a comic book they wrote and put AI art in. They specifically credited Midjourney as co-author. Their guidance would not apply for someone using AI as a tool, but said copyright would be thinner than if you'd drawn everything by hand. Specifically, you don't own any of the things the AI "just came up with". If you just wrote a prompt and grinded out some results, you probably own nothing[0]. If you use shittons of inpainting to control, say, the overall composition, but the AI filled in pixels somewhere, then you probably still own the overall image, but that's only because I'm not sure how you'd separate the two in a way that would let you copy just the AI-generated portion. Or, in the case of the comic book I mentioned earlier, they own the text, characters, and plot of the comic book, but not the artwork. [0] Yes, you could probably just lie to the Copyright Office. Make sure to never reveal your use of AI to anyone, because there's loads of angry artists who would love to tattle on you.
    - scheeseman486 3y ago
      This is literally a case of someone making AI art and trying to attribute it to the algorithm.
    - slavik81 3y ago
      I agree it's not quite the right argument. IANAL, but I think it's more illustrative to remove AI from the example entirely. If you wrote a prompt and gave it to a human artist to draw, would you have joint copyright over the resulting work? If you didn't do anything worthy of copyright, and the AI cannot be granted copyright, then it is not copyrightable. That said, it seems like a moot point to me. The practical uses of generative AI are not going to be one-and-done prompt-to-image tools. When AI is used more like a brush, the brush strokes the human chooses will still be granted copyright.
srackey 3y ago
Completely unenforceable. How can you even tell if an image was made by AI? What if AI created an outline that was worked on by a human artist (or vice versa)? Who would the burden of proof be on? Steam has a “no AI art” policy, and it’s rapidly turning into a “no obvious AI art policy”. How could they tell?
- kmeisthax 3y ago
  The thing about AI art is that, absent lots of prompt engineering, seed grinding, and touchups, you're likely to have a bunch of images that are obvious tells if your entire project is AI. Anyone trying to hide it would be spending time equivalent to just making the art themselves. There's also another advantage to having a "no obvious AI art" policy; and that's to cut down on spam. AI is extremely useful to people who want to spam art platforms.
  - nothercastle 3y ago
    That also devalues the work of the original creators whose work got knocked off by ai and they should be compensated for the damage done
    - Gigachad 3y ago
      This has never happened ever in history. So many jobs were devalued by new machines. And the people doing them were never compensated.
  - jwells89 3y ago
    And this will continue to be an issue until ML models have achieved something resembling sentience, because many of these tells are the result of the model not truly comprehending the subject matter and thus struggling to maintain internal consistency in everything from geometry and kinetics of human bodies to lighting and physics. Less obviously, ML models also lack the ability to bake in intent. In human made pieces, everything is as it is for a reason; it’s communicating something. In ML generated pieces, things are the way they are because that’s what’s statistically likely for the type of generated image.
542458 3y ago
I think (hypothetically, they may choose not to do this for a number of reasons) WoTC could still dramatically cut back on how much they pay artists by “outsourcing” things like backgrounds, extended art, etc to AI so long as the focal point of the piece is human-created and therefore copyrightable.
- AndyNemmity 3y ago
  Ironically, there's a massive scandal with WoTC right now for doing this. They say they aren't using AI, the majority doesn't believe them due to artifacts only AI would produce for backgrounds.
makeitdouble 3y ago
Won't they move to trademark protection instead, as it's a lot more flexible with less restrictions ? Basically the same way Disney let copyright go but will fight for trademark to the bitter end ?
- foota 3y ago
  I don't think you can broadly use trademark protection though, can you?
  - foota 3y ago
    From [1] "Not every character qualifies for trademark protection, however. For a character to be trademarked, the character cannot be too similar to other existing trademarked characters and must be used to brand products or services. Once a character meets these requirements, the owner can file for trademark protection." So I don't know if you could apply trademark to e.g., every card in magic, but maybe only to the key characters? 1: https://www.mekiplaw.com/how-to-trademark-a-character-an-easy-guide/#:~:text=Yes%2C%20you%20can%20trademark%20the,the%20character%20in%20your%20advertising https://www.mekiplaw.com/how-to-trademark-a-character-an-eas....
- galdosdi 3y ago
  That won't work. Trademarks are a lot harder to establish -- it's not just automatic from the moment you publish it as with copyright. You have to first start using it, then always mention it's a trademark when using it (with the TM or R symbols for example), then wait for it to catch on, then file with the government some paperwork. (Iirc, exact process is probably similar but different, but the point is it's a lot more involved) Trademark is intended to protect the holder from being impersonated, not from losing revenue from selling content.... So it's a lot easier to redistribute copies of trademarked work as long as you make it clear you are not affiliated with the trademark holder, in a manner which a reasonable person would heed. So for example, if a piece of art is trademarked by Disney, and it is well known by the public, and I print a copy and put it in front of my shop, a reasonable observer might this my shop is owned, operated, or endorsed by Fisney. So that's not OK. If instead I sell copies of that art in my shop, and make it clear to everyone I sell it to that I am in no way affiliated with Disney and this is totally unauthorized by Disney, I'm probably fine. Trademarks are also industry specific. That's why Apple Records and Apple Computer both exist -- as long as a reasonable person could not confuse them, it's OK. In short, trademarks are very very different from copyrights. They protect different activities. In fact I should not have used the phrase trademarked work. A work (like an image or movie or novel or software program) does not get trademarked. The character, slogan, logo, product name, company name, brand name, color scheme, etc used therein to identify the brand, is what is trademarked. Very different. I will add more examples, this time to illustrate copyright, which works basically the opposite : Suppose mickey mouse were not trademarked. Then while it would be illegal to redistribute verbatim copies of a recent Mickey mouse picture authored by Disney, as well as any modified remixed versions based on that verbatim picture, it would be perfectly legal to draw totally new art involving the same character as long as it was completely new without referring to the copyrighted work, because coypright protects the right of Disney to make money off distributing that picture they made, and they did not make or contribute to making your mickey drawing, and while you are using a character they came up with, in the absence of trademark, copyright isn't intended to protect the public from being confused as to who they are dealing with as trademark is. IANAL this is based on decades of amateur interest in IP law.
tbrownaw 3y ago
> status quo in the United States is that AI-generated images are not currently eligible for copyright. Aren't they? I thought it was just that the copyright holder has to be a recognized legal entity (so, the copyright would have to belong to the human operator or their employer, not to the ai model itself).
- bjt 3y ago
  From the article: > Last September, the US Copyright Review Board decided that an image generated using Midjourney’s software could not be copyright due to how it was produced.
  - jncfhnb 3y ago
    A grossly misleading oversimplification.
deleted 3y ago
[deleted]
GaggiX 3y ago
Does this mean that if, for example, a court rules that I cannot train an image generation model on copyrighted material, I can train it on AI-generated images?
nwallin 3y ago
> I highly doubt Wizards of the Coast or whoever is going to want their premium products to lose copyright protections, so they'll need to keep paying artists. WotC's latest round of layoffs (within the past month or so) hit the art staff especially hard.
- Brybry 3y ago
  The main source I've found for the December WotC layoffs is Christian Hoffer's Twitter[1] and only 3 of the ~20 people listed seem to be art staff. Some of the lists, such as on Reddit, appear to (erroneously?) list a few artists who advertise themselves as still employed by WotC. [2] [1] https://twitter.com/CHofferCBus/status/1734947730491932929 https://twitter.com/CHofferCBus/status/1734947730491932929 [2] https://www.reddit.com/r/dndnext/comments/18ij198/list_of_known_wotc_employees_let_go_by_hasbro/ https://www.reddit.com/r/dndnext/comments/18ij198/list_of_kn...
semiquaver 3y ago
> AI-generated images are not currently eligible for copyright It’s a bit more nuanced than that. Here is the relevant policy statement, which notes that some AI-assisted works are potentially eligible for registration and have indeed been registered, while works that are primarily the product of an AI are not. https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence https://www.federalregister.gov/documents/2023/03/16/2023-05...
- teaearlgraycold 3y ago
  Makes sense. Photoshop has had content-aware-fill for over a decade. That counts as AI as much as any diffuser does. I don't think those images should have their copyright invalidated.
  - addandsubtract 3y ago
    But then, if I generate an image using "AI" and touch it up in Photoshop, is it eligible for copyright again? How much "touch up" do I have to do for it to not be "AI generated"?
    - omnimus 3y ago
      This has been problematic forever long even before any LLMs. Techniques like photobashing that use copyrighted images modify them for it to be new work. Or even older cases like work of Andy Warhol. Where this is more extreme here is that there is no human labor involved there is no invention. On the other hand LLMs make this extra tricky because in one way output they create is objectively unique but subjectively/culturally it's not. To answer your question if you take AI generated image and change it enough for it to stand as it's own unique thing you could for sure claim it as your work and it would be eligible for copyright.
corethree 3y ago
This is a horrible direction to start off. Especially given that we can't truly tell if an image is AI generated or not. What if I modify an AI generated image? There's so many technicalities here that can be weaponized.
freedomben 3y ago
Wow, this is incredibly insightful! I'm completely on board, for whatever that's worth (which is pretty much nothing). That would really be a great way to structure things.
keiferski 3y ago
One question that is unclear to me is how this works if images are packaged with text or other content. For example; let’s say I write a book and then use AI images to illustrate it. It doesn’t seem logical to me that somehow the book would be copyrighted but the images inside the book wouldn’t be…? At some level, the “package” of images + text would supersede the two things separately. Otherwise you would have a situation where sharing the book is a copyright violation but sharing the images inside of it isn’t.
- rcxdude 3y ago
  There's nothing particularly contradictory about that: there's already situations where that is the case. For example when a book contains images which are public domain, or where elements of the book like the facts within it are not copyrightable. Another interesting one is tabletop game manuals: the layout and presentation of the rules are copyrightable, but the game mechanics generally aren't. So you can make a book which just contains the rules and not be infringing copyright. Using AI-generated images would be exactly the same situation.
  - keiferski 3y ago
    I'm envisioning more of a situation where a company adds text directly to AI-generated images, or otherwise somehow modifies them that prevents them from just being generic images, in the way public domain images are. I really don't think companies will just add images straight-from-the-generator without modifying them in such a way that prevents their easy re-use.
two_in_one 3y ago
> AI-generated images are not currently eligible for copyright. There is another bright side of it. This images can be used for AI training without copyright violation. Does this apply to texts as well?

by thurn 3y ago

nothercastle 3y ago

I do wonder if its a fruit of the poisoned tree argument and any AI derived work can’t be copyrighted because it used already dubious source material.

kmeisthax 3y ago
No, it's a Butlerian Jihad[0] argument. The Copyright Office's argument holds even for a fully public domain training set. US copyright law is already speciesist[1] - you can't assign authorship to an animal - so computers are also forbidden from authorship. [0] In the Dune universe, the "Butlerian Jihad" refers to a legal ban on thinking machines. [1] https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
- bart_spoon 3y ago
  Seems like that only applies if you anthropomorphize the AI and consider it the author, rather than a tool utilized by the artist. I mean, yes, the AI is doing the bulk of the work, but so is photoshop for a lot of digital art.
  - kennywinker 3y ago
    Photographs can be copyrighted, and all the human did was aim and press a button. Oh, and potentially travel to specific locations, adjust parameters, choose lenses, stage a scene, makeup, wardrobe, lighting, etc. etc. But none of those things are required for the image to be copyrighted
- tavavex 3y ago
  I'm not really sure how this connects to the argument. No one is trying to grant authorship to an algorithm - it would be a ridiculous effort that was never even in the cards. In these copyright disputes, the authorship on AI outputs would be on the person using the AI. Generative AI takes inputs that are provided by a human and transforms it into certain outputs. Legally speaking, I don't see it as different from me getting protection for something I did in Photoshop - trying to somehow give Photoshop authorship would be absurd.
  - kmeisthax 3y ago
    The Copyright Office wrote their guidance specifically because someone tried to register a comic book they wrote and put AI art in. They specifically credited Midjourney as co-author. Their guidance would not apply for someone using AI as a tool, but said copyright would be thinner than if you'd drawn everything by hand. Specifically, you don't own any of the things the AI "just came up with". If you just wrote a prompt and grinded out some results, you probably own nothing[0]. If you use shittons of inpainting to control, say, the overall composition, but the AI filled in pixels somewhere, then you probably still own the overall image, but that's only because I'm not sure how you'd separate the two in a way that would let you copy just the AI-generated portion. Or, in the case of the comic book I mentioned earlier, they own the text, characters, and plot of the comic book, but not the artwork. [0] Yes, you could probably just lie to the Copyright Office. Make sure to never reveal your use of AI to anyone, because there's loads of angry artists who would love to tattle on you.
  - scheeseman486 3y ago
    This is literally a case of someone making AI art and trying to attribute it to the algorithm.
  - slavik81 3y ago
    I agree it's not quite the right argument. IANAL, but I think it's more illustrative to remove AI from the example entirely. If you wrote a prompt and gave it to a human artist to draw, would you have joint copyright over the resulting work? If you didn't do anything worthy of copyright, and the AI cannot be granted copyright, then it is not copyrightable. That said, it seems like a moot point to me. The practical uses of generative AI are not going to be one-and-done prompt-to-image tools. When AI is used more like a brush, the brush strokes the human chooses will still be granted copyright.

srackey 3y ago

Completely unenforceable. How can you even tell if an image was made by AI? What if AI created an outline that was worked on by a human artist (or vice versa)? Who would the burden of proof be on? Steam has a “no AI art” policy, and it’s rapidly turning into a “no obvious AI art policy”. How could they tell?

kmeisthax 3y ago
The thing about AI art is that, absent lots of prompt engineering, seed grinding, and touchups, you're likely to have a bunch of images that are obvious tells if your entire project is AI. Anyone trying to hide it would be spending time equivalent to just making the art themselves. There's also another advantage to having a "no obvious AI art" policy; and that's to cut down on spam. AI is extremely useful to people who want to spam art platforms.
- nothercastle 3y ago
  That also devalues the work of the original creators whose work got knocked off by ai and they should be compensated for the damage done
  - Gigachad 3y ago
    This has never happened ever in history. So many jobs were devalued by new machines. And the people doing them were never compensated.
- jwells89 3y ago
  And this will continue to be an issue until ML models have achieved something resembling sentience, because many of these tells are the result of the model not truly comprehending the subject matter and thus struggling to maintain internal consistency in everything from geometry and kinetics of human bodies to lighting and physics. Less obviously, ML models also lack the ability to bake in intent. In human made pieces, everything is as it is for a reason; it’s communicating something. In ML generated pieces, things are the way they are because that’s what’s statistically likely for the type of generated image.

542458 3y ago

I think (hypothetically, they may choose not to do this for a number of reasons) WoTC could still dramatically cut back on how much they pay artists by “outsourcing” things like backgrounds, extended art, etc to AI so long as the focal point of the piece is human-created and therefore copyrightable.

AndyNemmity 3y ago
Ironically, there's a massive scandal with WoTC right now for doing this. They say they aren't using AI, the majority doesn't believe them due to artifacts only AI would produce for backgrounds.

makeitdouble 3y ago

Won't they move to trademark protection instead, as it's a lot more flexible with less restrictions ? Basically the same way Disney let copyright go but will fight for trademark to the bitter end ?

foota 3y ago
I don't think you can broadly use trademark protection though, can you?
- foota 3y ago
  From [1] "Not every character qualifies for trademark protection, however. For a character to be trademarked, the character cannot be too similar to other existing trademarked characters and must be used to brand products or services. Once a character meets these requirements, the owner can file for trademark protection." So I don't know if you could apply trademark to e.g., every card in magic, but maybe only to the key characters? 1: https://www.mekiplaw.com/how-to-trademark-a-character-an-easy-guide/#:~:text=Yes%2C%20you%20can%20trademark%20the,the%20character%20in%20your%20advertising https://www.mekiplaw.com/how-to-trademark-a-character-an-eas....
galdosdi 3y ago
That won't work. Trademarks are a lot harder to establish -- it's not just automatic from the moment you publish it as with copyright. You have to first start using it, then always mention it's a trademark when using it (with the TM or R symbols for example), then wait for it to catch on, then file with the government some paperwork. (Iirc, exact process is probably similar but different, but the point is it's a lot more involved) Trademark is intended to protect the holder from being impersonated, not from losing revenue from selling content.... So it's a lot easier to redistribute copies of trademarked work as long as you make it clear you are not affiliated with the trademark holder, in a manner which a reasonable person would heed. So for example, if a piece of art is trademarked by Disney, and it is well known by the public, and I print a copy and put it in front of my shop, a reasonable observer might this my shop is owned, operated, or endorsed by Fisney. So that's not OK. If instead I sell copies of that art in my shop, and make it clear to everyone I sell it to that I am in no way affiliated with Disney and this is totally unauthorized by Disney, I'm probably fine. Trademarks are also industry specific. That's why Apple Records and Apple Computer both exist -- as long as a reasonable person could not confuse them, it's OK. In short, trademarks are very very different from copyrights. They protect different activities. In fact I should not have used the phrase trademarked work. A work (like an image or movie or novel or software program) does not get trademarked. The character, slogan, logo, product name, company name, brand name, color scheme, etc used therein to identify the brand, is what is trademarked. Very different. I will add more examples, this time to illustrate copyright, which works basically the opposite : Suppose mickey mouse were not trademarked. Then while it would be illegal to redistribute verbatim copies of a recent Mickey mouse picture authored by Disney, as well as any modified remixed versions based on that verbatim picture, it would be perfectly legal to draw totally new art involving the same character as long as it was completely new without referring to the copyrighted work, because coypright protects the right of Disney to make money off distributing that picture they made, and they did not make or contribute to making your mickey drawing, and while you are using a character they came up with, in the absence of trademark, copyright isn't intended to protect the public from being confused as to who they are dealing with as trademark is. IANAL this is based on decades of amateur interest in IP law.

tbrownaw 3y ago

> status quo in the United States is that AI-generated images are not currently eligible for copyright. Aren't they? I thought it was just that the copyright holder has to be a recognized legal entity (so, the copyright would have to belong to the human operator or their employer, not to the ai model itself).

bjt 3y ago
From the article: > Last September, the US Copyright Review Board decided that an image generated using Midjourney’s software could not be copyright due to how it was produced.
- jncfhnb 3y ago
  A grossly misleading oversimplification.

deleted 3y ago

[deleted]

GaggiX 3y ago

Does this mean that if, for example, a court rules that I cannot train an image generation model on copyrighted material, I can train it on AI-generated images?

nwallin 3y ago

> I highly doubt Wizards of the Coast or whoever is going to want their premium products to lose copyright protections, so they'll need to keep paying artists. WotC's latest round of layoffs (within the past month or so) hit the art staff especially hard.

Brybry 3y ago
The main source I've found for the December WotC layoffs is Christian Hoffer's Twitter[1] and only 3 of the ~20 people listed seem to be art staff. Some of the lists, such as on Reddit, appear to (erroneously?) list a few artists who advertise themselves as still employed by WotC. [2] [1] https://twitter.com/CHofferCBus/status/1734947730491932929 https://twitter.com/CHofferCBus/status/1734947730491932929 [2] https://www.reddit.com/r/dndnext/comments/18ij198/list_of_known_wotc_employees_let_go_by_hasbro/ https://www.reddit.com/r/dndnext/comments/18ij198/list_of_kn...

semiquaver 3y ago

> AI-generated images are not currently eligible for copyright It’s a bit more nuanced than that. Here is the relevant policy statement, which notes that some AI-assisted works are potentially eligible for registration and have indeed been registered, while works that are primarily the product of an AI are not. https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence https://www.federalregister.gov/documents/2023/03/16/2023-05...

teaearlgraycold 3y ago
Makes sense. Photoshop has had content-aware-fill for over a decade. That counts as AI as much as any diffuser does. I don't think those images should have their copyright invalidated.
- addandsubtract 3y ago
  But then, if I generate an image using "AI" and touch it up in Photoshop, is it eligible for copyright again? How much "touch up" do I have to do for it to not be "AI generated"?
  - omnimus 3y ago
    This has been problematic forever long even before any LLMs. Techniques like photobashing that use copyrighted images modify them for it to be new work. Or even older cases like work of Andy Warhol. Where this is more extreme here is that there is no human labor involved there is no invention. On the other hand LLMs make this extra tricky because in one way output they create is objectively unique but subjectively/culturally it's not. To answer your question if you take AI generated image and change it enough for it to stand as it's own unique thing you could for sure claim it as your work and it would be eligible for copyright.

corethree 3y ago

This is a horrible direction to start off. Especially given that we can't truly tell if an image is AI generated or not. What if I modify an AI generated image? There's so many technicalities here that can be weaponized.

freedomben 3y ago

Wow, this is incredibly insightful! I'm completely on board, for whatever that's worth (which is pretty much nothing). That would really be a great way to structure things.

keiferski 3y ago

One question that is unclear to me is how this works if images are packaged with text or other content. For example; let’s say I write a book and then use AI images to illustrate it. It doesn’t seem logical to me that somehow the book would be copyrighted but the images inside the book wouldn’t be…? At some level, the “package” of images + text would supersede the two things separately. Otherwise you would have a situation where sharing the book is a copyright violation but sharing the images inside of it isn’t.

rcxdude 3y ago
There's nothing particularly contradictory about that: there's already situations where that is the case. For example when a book contains images which are public domain, or where elements of the book like the facts within it are not copyrightable. Another interesting one is tabletop game manuals: the layout and presentation of the rules are copyrightable, but the game mechanics generally aren't. So you can make a book which just contains the rules and not be infringing copyright. Using AI-generated images would be exactly the same situation.
- keiferski 3y ago
  I'm envisioning more of a situation where a company adds text directly to AI-generated images, or otherwise somehow modifies them that prevents them from just being generic images, in the way public domain images are. I really don't think companies will just add images straight-from-the-generator without modifying them in such a way that prevents their easy re-use.

two_in_one 3y ago

> AI-generated images are not currently eligible for copyright. There is another bright side of it. This images can be used for AI training without copyright violation. Does this apply to texts as well?