America: AI artwork is not authored by humans, so can't be protected by copyright

Images generated by Midjourney and other AI text-to-image tools are not protected by US copyright law since they "are not the product of human authorship," according to the nation's Copyright Office. Last September, the USCO approved an application for Zarya Of The Dawn, a graphic novel created by Kristina Kashtanova, …

[jake]

Presumably this means that ...

... "explosive art" is no longer copyrightable.

Nor is the result of shooting paint cans in front of a canvas.

Or any other "art" where the so-called "artist" produces an image that is the result of random events.

[Richard 12]

Re: Presumably this means that ...

Not the same. In the cases you mention, the artist has control over the results.

While the details will vary between runs of exploding paint, the artist can set it up to produce a particular desired effect. Thus exploding paint cans are a tool.

The decision here is that each individual result of a Midjourney prompt is designed to be an entirely random kitbash of parts of works from the training set. The prompt author doesn't have control over the output, only whether or not to use it.

So using Midjourney is legally the same as typing something into your favourite image search, then scrolling through the results until you find a useful image.

Which means you definitely don't own the copyright to the images, only their selection and layout.

Whether doing this infringes copyright depends on the licensing of the works you used, of course.

[John Brown (no body)]

Re: Presumably this means that ...

I wonder how this affects that blokie who used to throw paint into the exhaust stream of a parked jet aircraft and "blow" paint onto the canvas? At best, all he was choosing was the selection and order of colours. I'd like to see him prove that he can replicate his results using skill as an "artist".

[Michael Wojcik]

Re: Presumably this means that ...

Right. And note that Kashtanova could have included the prompts in the expressive work (or published them separately) and copyrighted those. (It's almost certain Fair Use would apply to much of the content of individual prompts, since they're likely to be short and not particularly creative in themselves, but substantial portions of the collection would retain protection.)

The key here isn't whether a random process is involved in creating the art in question; it's a – still rather vague – matter of how far the human author is removed from the output by the tool. The Slater-monkey photo controversy is similar.

[Anonymous Coward]

Re: Presumably this means that ...

Nothing about AI generated art is random unless you tell it you want random things, unless you count the starting noise pattern. To say that it is bashing together parts of works from the training set ignores how it works in reality.

It can't bash parts of works together because it doesn't have parts of works to bash together. It understands a concept the same as if you sketched something you know. You aren't bashing anything together, you are originally generating the artwork.

Now to say it is not copyrightable because the artist doing it is an AI, is like denying CocaCola a copyright on a new logo because they had someone else paint it in the style of Starry Night. If it was their idea they should have the rights to it. If they just told the AI/artist "make random stuff" then this is more like what you describe, having all creativity come from random noise and AI. As long as a human is actually driving it creatively, it should be treated the same as Photoshop.

[Anonymous Coward]

Re: Presumably this means that ...

Wasn't this case decided when a monkey grabbed a camera a few years back?

Just sayin'

[Anonymous Coward]

Re: Presumably this means that ...

That case had some understandable debates (who's camera? who's "eye"?, who"s time?) however, this case is equivalent to adding art to a cart...

<button>Add Art To Cart</button>

She still can copyright the book minus pictures, which essentially is the book.

[Paul Hovnanian]

Re: Presumably this means that ...

IIRC, the monkey lost the case.

[Michael Wojcik]

Re: Presumably this means that ...

It's complicated. See the link I posted above, which links to some of Underhill's other posts on the subject. While LoweringTheBar is a legal-humor site, he's accurately reporting various court and Copyright Office decisions on the matter, many of which avoid completely clarifying the issue. Note, for example, that the CO has mostly just ruled on registering copyrights that may not have a "human author" (a term that they haven't been able to pin down anyway), but registration is not necessary to actually be granted copyright (in the US).

[Neil Barnes]

I wonder how this works in the UK (and possibly Europe?)

I'm not sure about Europe, but in the UK there is no need to register a work for copyright; it exists as soon as the work is created in a physical form: when I print out a book, slap pigments on a canvas, or develop a photograph for example.

https://www.gov.uk/government/consultations/artificial-intelligence-and-ip-copyright-and-patents indicates that the government have thought about but at present:

For AI-devised inventions we plan no change to UK patent law now. Most respondents felt that AI is not yet advanced enough to invent without human intervention.

[Richard 12]

Re: I wonder how this works in the UK (and possibly Europe?)

It seems consistent.

The law is actually the same in the US, it's just that enforcing your copyright is exceedingly difficult without the "certificate".

One interesting detail is that these decisions leave open the possibility of a future AI being able to own a copyright.

If the US body had allowed Midjourney-created images to be copyright to a human, then it would have set a precedent making it far more difficult for a future "true" AI to be assigned copyright in its own right.

[Roland6]

Re: I wonder how this works in the UK (and possibly Europe?)

I suppose the certificate provides evidence a thrid-party saw the work of art on a specific date...

[Anonymous Coward]

Re: I wonder how this works in the UK (and possibly Europe?)

There is protection here, as follows:

https://www.legislation.gov.uk/ukpga/1988/48/section/9

Subsection 3 is the key - Apologies for lack of formatting:

Authorship of work.

(1)In this Part “author”, in relation to a work, means the person who creates it.

(2)That person shall be taken to be—

F1 [F1( aa )in the case of a sound recording, the producer;

F1( ab )in the case of a film, the producer and the principal director;]

(b)in the case of a broadcast, the person making the broadcast (see section 6(3)) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast;

(c)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)in the case of the typographical arrangement of a published edition, the publisher.

(3)>>>>>>>>>>>In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.<<<<<<<<<<<<

(4)For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.

(5)For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.

There's a similar provision for design.

It's been around for a long time and covers works that have value but don't have human involvement per se, such as for example weather maps.

/ IAL, BTW

[MachDiamond]

Re: I wonder how this works in the UK (and possibly Europe?)

"I'm not sure about Europe, but in the UK there is no need to register a work for copyright"

In any country that is a signatory to the Berne Convention, an author holds the Copyright to their work upon its creation unless they have previously entered into a contract that assigns the work to another or perform the work in the normal course of their employment. The problem is that at least in the US, if you don't register the work, the Copyright isn't worth a damn. You need a timely registration to sue for infringement in court. It's a measly $55/ registration for up to 750 photos so I register all of my published work. I have to do that at least every quarter so I can qualify for statutory damages if somebody steals my photos.

After all that, there are plenty of cases where something isn't copyrightable. Using a jet engine to fling paint at a canvas might not have enough merit and neither would a photo of clouds or grass. If you try to sue over 'your' photo of a brick wall, you might only be enriching your attorney.

[Tom 7]

As a slight aside.

Interesting hover over on SMBC this morning. "Have you noticed this thing where people say AI will never be as good as Shakespeare, but then nobody mentions that none of us are as good as Shakespeare?

[Ken Hagan]

Re: As a slight aside.

That depends on your opinion of Shakespeare. Lots of school children reckon he is over-rated and, since art is subjective, who's to argue?

[Richard 12]

Re: As a slight aside.

He's just popular culture.

The cool kids don't do pop culture.

[that one in the corner]

Re: As a slight aside.

> Maybe some of the hackneyed tropes that can be found in his plays weren't so familiar in his day

Shakespeare is just one cliche after another.

[Michael Wojcik]

Re: As a slight aside.

who's to argue?

Who isn't?

Aesthetic evaluations may ultimately be subjective (though lord knows there's a great deal of debate on that question), but that doesn't mean all evaluations are equally sophisticated, interesting, or persuasive. Rubrics can be devised and debated. There are ample grounds far more satisfying than "I know what I like" for declaring some works, and some artists, are superior to others.

AI isn't Toni Morrison or Salman Rushdie or Haruki Murakami or Elizabeth Bishop yet, either. The fact that the vast majority of humans do not produce great art – for whatever constellation of reasons, in which things like opportunity costs must factor – does not mean no one does, or only one historical figure did.

[doublelayer]

Re: As a slight aside.

"nobody mentions that none of us are as good as Shakespeare?"

Maybe some of us are. Not me, certainly, but I don't subscribe to the theory that Shakespeare's work is the best that written art can attain, or even the best in English. There are some things that Shakespeare likes to do that would annoy me in anyone else's work, and I don't plan to let him off the hook for them just because he's the guy who gets listed in the "best literary creators" database judged by people who like him already.

Maybe some of the hackneyed tropes that can be found in his plays weren't so familiar in his day, but a word that's often used to describe his brilliance is timeless, and it's a word I don't always agree with. For example, if books I'm reading today drop in "Two people meet, they haven't even spoken yet, they're in deepest love or at least they think so, both of them feel the same thing, and now they're going to spend the next few chapters wondering if the other one is", I'm disappointed and more pessimistic about the book being able to go somewhere interesting. Yet Shakespeare has several plays that rely on pushing that button in act I and either waiting until act V to clue the characters in (comedies) or having the characters do something really stupid about it (tragedies). There are authors who, in my opinion, have made more entertaining, meaningful, well-written literature. That doesn't stop Shakespeare being rather good at writing things, but I wouldn't elevate him to the apex of quality he holds in many literary minds.

[Michael Wojcik]

Re: As a slight aside.

the apex of quality he holds in many literary minds

Does he? I suspect this is rather more a middlebrow cliché than an accurate evaluation of the literary establishment.

Certainly English departments often have Shakespeareans – that is, professors who specialize in Shakespeare. They also often have Chaucerians. French departments often have Proustians. Italian departments often have Danteans. The existence of the occasional specialist does not define the field.

(Regarding your critique, Shakespeare's plays aren't renowned for his plotting, which was often recycled from other popular works of the era and is merely a vehicle for aspects of greater interest, such as the characters' interiority and perhaps most of all the prosody. Shakespeare coined over a thousand words and phrases which are still in use today, making him one of the most prolific innovators in the English language itself.)

[doublelayer]

Re: As a slight aside.

I don't mean to suggest that every literary person thinks that Shakespeare alone is the best writer that has ever existed. I'm aware that some will hold views similar to those I've expressed and many others will have him sharing the top ranks with a variety of other authors. And yet ...

"The existence of the occasional specialist does not define the field.": The existence of specialists in rates unparalleled with others does define the field. This is independent of language, so for instance, I have a feeling you find a lot more people in Italian literature who study Dante than other writers, of that time or later. When there are many more specialists on one author than there are for any other author, they start to indicate the focus of the field. The same way that, if a computer science department had twenty programming language theorists and one algorithms specialist, you could still call that department a languages-focused group. I don't have statistics on specialists, but there are a lot of writers who wrote in English, and I doubt there are so many people specializing in them. In addition, I also refer to the public statements in favor of a particular writer. Shakespeare is more often given praise as one of the best writers in English, whereas others are often complimented less grandiosely. This is certainly the case of the comment I replied to, which expresses the belief that nobody is as good as Shakespeare and doesn't leave room for exceptions.

[Big_Boomer]

Good!

Copyright and Patents should only be able to be held by people. I have never liked the fact that companies can "own" Copyright and Patents and believe that that should be revoked. Copyrights and Patents were designed to protect the rights of the INDIVIDUAL (not a company, not a computer program) who created the work, so that they could profit from their work or to give them time to develop and profit from their idea. These days copyright is abused by companies and seems to be being extended indefinitely in the name of earning profit for those who did not create it. Copyright should end with the death of the creator of the work after which it becomes public property. The heirs of creators inherit the wealth that the creators generated in their lifetime, much as we all do, but the idea of receiving income for something that they did not create is obscene and symptomatic of what is really wrong with our society of greed.

Maybe we do need a separate company-patent for things that get created by teams of employed people working together but if so that should be severely limited, much more so than existing patents.

As for all this AI con-trick marketing garbage (there is zero intelligence), it's irrelevant to Copyrights and Patents as they require a sentient owner. Show me a sentient machine and I will be the first to fight for it's rights to be equivalent to a human beings rights.

[Robert Carnegie]

Re: Good!

The first problem with your idea is that murdering copyright owners becomes a good business plan for would-be competitors. If they get caught... for that matter, if copyright holder A dies in suspicious circumstances, you would blame their main competitor, B, but it could be actuallly that C did it just to get B into trouble. I won't go on to other flaws...

Also, as a graphic novel, it is usual in that creative business for someone to write a script, or a plot, in words, which then an artist interprets in graphic form. The script can look like a film script. A plot is less detailed and the artist has more scope for free interpretation. Artists are not necessarily good writers, and vice versa. And they say that a picture is worth a thousand words... so, if the thousand words are there, then isn't the picture composed from those words, a derivative work, so that if there is copyright in the words, there also is copyright in the picture?

[John Brown (no body)]

Re: Good!

There are al;l sorts of situations where murdering a business competitor could be justified by "good business practice", but other than in criminal enterprises, it's actually quite rare for many reasons. Mainly that most people are not murderers and the likelihood of being caught. Changing copyright such that it expires when the holder expires is very unlikely to noticeably affect the murder rates.

[Ideasource]

Re: Good!

Why because keeping them alive only to be tortured until they sign over their copyright is any better

[Throatwarbler Mangrove]

Re: Good!

Unfortunately, corporations are artificial people in the eyes of the law, so they can and do have the full protection of the law just as a real human does (more, in many cases--so far, no one has executed a corporation by lethal injection).

[CatWithChainsaw]

Re: Good!

And with superior financial resources, corporations often have *better* protection of the law than an actual human.

[hayzoos]

Re: Good!

"so far, no one has executed a corporation by lethal injection"

We may see it. I refer to Twitter and Elon Musk.

[that one in the corner]

Re: Good!

But Musk is not AFAIK any kind of duly appointed agent of the Courts, so if he does succeed in his goal to kill Twitter that would be corporateslaughter?

[MachDiamond]

Re: Good!

"But Musk is not AFAIK any kind of duly appointed agent of the Courts, so if he does succeed in his goal to kill Twitter that would be corporateslaughter?"

Nope, it would be suicide. The other investors, some of which are very direct, might take exception to him losing their billions.

If you don't pay back a £1,000 loan, you are in trouble. If you default on a billion pound loan, the bank is in trouble. If you default on the money you received from a middle eastern investment fund, it's back to you being in trouble again. Possibly in a terminal way.

[Ideasource]

Re: Good!

And in there lies the answer.

Legally entrenching the concept of a corporation to be both a method and an organizational tool, and specifically not to be confused with the individuals that utilize them.

[Androgynous Cow Herd]

Re: Good!

OK.

So, lets say a pharmaceutical company uses AI to sythesize a large amount of raw data looking for protein interactions, and in the process finds a "hit" that holds the cure for cancer. Since the AI actually did the synthesis, is the resulting cure not patentable?

[cosmodrome]

Re: Good!

Patents and copyright are two very different things. You can hold the copyright on a piece of arts but there's no way to patent it. You can under the right conditions patent the way to create something, specifically the tools to do so but you can't copyright this sort of abstract matter.

[John Brown (no body)]

Re: Good!

In that instance, yes. Because the AI will only be finding what it's been programmed to find, ie one of the needles in the vast array of haystacks. What it found may be useless in terms of practical use since it may also kill the patient. That extra work to find if the "cure" is usable.non-lethal and safe for use on patients takes a lot more human work.

[hayzoos]

Re: Good!

Copyrights and Patents were designed to allow monetization of intellectual property. Without the legal protections afforded by Copyright and Patent, anybody of sufficient ability and/or skill could reproduce the protected items without having to compensate the copyright or patent holder. Copyrights and Patents can be sold. A particularly inventive individual could obtain boatloads of patents but be unable to produce the items themselves to produce revenue. They could sell (or license) such patents to a producer to generate said revenue. The same concept applies to copyrights.

The purpose of IP laws is to allow creatives to have a shot at making a living and encouraging them to produce art, literature, music, and the like. There needs to be enough flexibility to effect that purpose. I do agree that major elements of IP law have been perverted for corporation benefit which has no parallel to individual benefit and overshoots the purpose of the IP laws.

There are numerous movies which have been produced by companies which would not have been if the companies could not hold copyright. On the other hand, such companies are able to do things with their copyright through their lawyers which an individual could not. The perversion has occurred in the music industry and the publishing industry and the art industry in different but at the same time similar ways.

Just like the rest of the world, the rich get richer, at the expense of the poor. That is the core of what I disagree with. I think others has the same view.

[Michael Wojcik]

Re: Good!

A particularly inventive individual could obtain boatloads of patents but be unable to produce the items themselves to produce revenue. They could sell (or license) such patents to a producer to generate said revenue.

And by the same token, the IP held by a company can be a major part of its value, and so critical to obtaining capital (via debt or equity). It's also a means to compensate debtors should the company go under. Restricting IP rights to natural persons would require a massive restructuring of capitalism as practiced in the rich world today and likely have a large chilling effect on innovation.

But, hey, we don't want to let reason get in the way of sophomoric attacks on IP so beloved of much of the Reg readership.

[doublelayer]

Re: Good!

Copyrights and patents were designed to protect the creator, not to limit them. There are many things covered by one or the other that cannot functionally be made by a single creator. For example, while I can make a film all on my own, it's going to be worse than if I get multiple people who know what they're doing and we make one together. If we do that, it makes sense for everyone to share the copyright for that work, rather than to try to find one person who deserves it all and who has to pay everyone else. A company is a method of allowing multiple people to work together and own things together as a single entity, and having that company own the copyright to the created work is the efficient way of making that possible.

That doesn't mean we have to do it that way, but most other ways are completely broken. For example, if we all held copyright to different pieces (I own the soundtrack for the first hour, person A owns the second hour, person B owns most of the screenplay, person C owns the part of the screenplay where the scientists are describing the situation because Person B got the technobabble all wrong, and person D owns the footage for the background), then things break down if person D needs to leave but we still want to set my introductory piece to their scenery, because they can't give us their copyrights even if they want to. Similarly, if we all own the copyright jointly in a personal capacity, then what happens if person C gets mad and quits, and now they say we shouldn't use what we have because they don't agree to allow the use of their fraction of the copyrights to everything. Having a company, where the ownership and contracts specify who has what level of control and formalizes the distribution of profits, allows the group to act together in a way that most alternatives would find difficult.

[John Brown (no body)]

Re: Good!

"For example, if we all held copyright to different pieces (I own the soundtrack for the first hour, person A owns the second hour, person B owns most of the screenplay, person C owns the part of the screenplay where the scientists are describing the situation because Person B got the technobabble all wrong, and person D owns the footage for the background), then things break down if person D needs to leave but we still want to set my introductory piece to their scenery, because they can't give us their copyrights even if they want to."

Actually, that is exactly how it works in much of the media industry, TV and film in particular. There will be many different rights holders involved in some productions. I'm not in the industry, but have seen and heard how, in at least some instances, getting all the various rights needed for a production can take time and negotiations. The one that sticks in my mind is Terry Nation (well, his estate) owns the rights to the Daleks, The BBC has to licence any use of the Daleks in Dr Who from the estate. Likewise if you need to set a mood or time period in a TV or film production, you need music that the audience will immediately associate with the moment and in many case that will mean licence one or more music tracks, which could mean negotiating rights with lyrics authors, music arrangers and performers or, if your lucky, just with a single entity like a record label.

[doublelayer]

Re: Good!

That's what happens if you want to license something that already exists, such as music that's already familiar. I was referring to how to deal with new stuff that is created for the film, such as original compositions for the score. Most of the time, the company that will own the film will commission a composer and an orchestra to write something and assign the copyright over to the studio, who will then own the copyright for all individual work related to the film. This works well when the studio can give the composer a bunch of money or a share of the profits, but it would break down if each newly created component had to be licensed like preexisting components.

[MachDiamond]

Re: Good!

"The one that sticks in my mind is Terry Nation (well, his estate) owns the rights to the Daleks, The BBC has to licence any use of the Daleks in Dr Who from the estate."

That sounds like a mistake made by the BBC. It's not a good idea to license characters from a third party unless it's on a perpetual basis.

[MachDiamond]

Re: Good!

"If we do that, it makes sense for everyone to share the copyright for that work"

I'd rather get paid $75/hr to shift lights around and run cable than base my payout on whether the movie does well in the box office or bombs. That's the trade, but only the actors get a choice of which one they'll take or maybe they'll have a bit of both. The executive producers take a huge risk by investing their money and get a piece of the Copyright in return.

[MachDiamond]

Re: Good!

"Copyright should end with the death of the creator of the work after which it becomes public property."

How about that Charlie Watts (former drummer for the Rolling Stones) has passed on but the band continues? The rights to the music might be held by something like "Rolling Stones Pty Ltd" which is the legal business of the band which still operates. Let's say they all pass away with minor children left behind and bank accounts overdrawn through reckless spending and all left is the library of music they have made. Why shouldn't the children receive that as their inheritance the same way as another child might inherit a stock portfolio?

I have to agree that the length of a Copyright after the author's death has become silly mainly by Disney buying off politician to keep Mickey Mouse cartoon firmly out of the public domain. The author's life plus 30 years is more than adequate and 60 years for company owned copyrights. Yes, companies should be granted copyrights. How to you determine the authorship for something like a feature film. Just look at all of the people that created it in the credits and realize that there are even more than didn't get their names listed. There are also thousands of companies that create content and expect to be able to earn money from it for a long enough period of time for the business to be worthwhile. So much gets made that is complete shit that those companies need to cover a lot of mistakes.

Anybody that works or has worked in a creative field likely understands how important Copyright is. Doing anything creative means many more misses than hits so those hits have to carry the load. If I were to finally write that big chart topping hit and drop dead one week into the first world tour, I'd like my wife and child to have some return. If the copyright died with me, .......

[Anonymous Coward]

Re: Good!

I generally agree, especially with the case of dying shortly after the work was produced, but I'd like a simpler system: 50 years from date of creation of the work, period. (Possibly except for software, since it makes sense to have software written for, ex. MS-DOS be public domain.) Does it make sense for a writer or musician who created a work when they were 20 to still be receiving royalties on *that* work when they're 90?

[Michael Wojcik]

Re: Good!

There will always be trade-offs and perverse cases for any set of arrangements for IP ownership. I think most people agree that the system we have in the US has suffered greatly due to regulatory capture and the timelines are now significantly too long. Beyond reducing those, though, I'm not sure I see a compelling case for making any specific major changes to the system.

I'm not necessarily averse to your proposal, but I think it would need considerable study before I could endorse it.

The main thing is to stop letting the media conglomerates lobby Congress into extending the timeline, and instead reduce it. But it's hard to see how even that is politically feasible.

[jake]

Re: Good!

"But it's hard to see how even that is politically feasible."

Personally, I would vote for a politician who promised to do their best to get rid of lobbyists entirely.

Ban them entirely. Totally cut the lobbyists off. All of them. Both at the State and Federal level. The shysters. Capital Hill is supposed to be there for "We, the People", not the likes of Big Business and Greenpeace.

Get rid of the lobbyists, and career politicians who are only in it for the money will go away. Win-win.

I suspect I'm not alone in this thought. Shame there is so much money involved, though. Politicians are crooks, the lot of 'em. They can all be bought, for enough money.

[MachDiamond]

Re: Good!

"Does it make sense for a writer or musician who created a work when they were 20 to still be receiving royalties on *that* work when they're 90?"

I believe so. Plenty of creative people don't get noticed until they are well along in years. A number of bands that are an overnight success have been at it for 20 years. Besides, at 90, you can probably use all the money you can bring in and you aren't going to be getting hired anywhere.

[tatatata]

A bit different...

The story that the US Copyright Office tells feels a bit different from what I read in the article:

"In her application, Ms. Kashtanova listed the author of the Work as “Kristina Kashtanova” and stated that she had created a “[c]omic book.” The application did not disclose that she used artificial intelligence to create any part of the Work, nor did she disclaim any portion of the Work"

"Shortly after registering the Work, the Office became aware of statements on social media attributed to Ms. Kashtanova that she had created the comic book using Midjourney artificial intelligence. Because the application had not disclosed the use of artificial intelligence, the Office determined that the application was incorrect, or at a minimum, substantively incomplete. "

In other words: the application by Ms. Kashtanova was a bit misleading.

The discussion about the use of AI also refers back to the discussion of photography:

"[...] if photography was a “merely mechanical” process, “with no place for novelty, invention or originality” by the human photographer, then in such case a copyright is no protection."

So, if you want to copyright an AI-novel, you must show that there is some novelty, invention or originality. At the moment, AI is seen as a merely mechanical process.

[Brewster's Angle Grinder]

A bit off a tool

They seem to be arguing the AI is not a mechanical process. They seem to be arguing it's closer to rolling dice. Although I'm not quire sure where the line is being drawn between deterministic and non-deterministic - they're setting themselves up to have to answer a bunch of question.

[Yet Another Anonymous coward]

Re: A bit off a tool

>They seem to be arguing the AI is not a mechanical process

So the backgrounds in movies / games created using Perlin noise aren't copyright-able

Even modern ray-tracing isn't mechanistic, it uses Monte-Carlo and noise injection to add realism

Not sure I see much difference in a VFX artist tweaking the "randomness" dial on a water texture generator and an AI-technicain choosing the magic words to give to DAL-E to generate the image they want

[John Brown (no body)]

Re: A bit off a tool

Has anyone here tried any of these "AI" image generators? Can you replicate a result by giving it the same inputs or does the "AI" inject randomness? Or is the "AI" changing as new data is input such that giving it exactly the same input tomorrow as you did today will generate a different result?

[Richard 12]

Re: A bit off a tool

The public ones all start with randomness and can't be reproduced

If you have access to the underlying application, then you can seed the psuedo-rng the same each run, and they are supposed to produce the same result each time.

Not all of them do, due to race conditions and rounding errors, which is either a bug or a feature, depending on who you ask.

They don't accept new input. That's the "training" phase, and it's several orders of magnitude more expensive than running the model.

[MachDiamond]

Re: A bit different...

" Because the application had not disclosed the use of artificial intelligence, the Office determined that the application was incorrect, or at a minimum, substantively incomplete. ""

I've never seen anywhere on the forms where you'd make such a disclosure. There is also no space available or a requirement that I provide my camera settings; completely manual, partial chosen by the camera or completely decided by the camera.

The use of AI to "create" a work is going to take a lot of defining. It's one thing to just turn it loose and keep hitting 'next' until something comes along that looks good or when the author puts in some direction for the program to go in. Many photographers just spray and pray while others agonize for minutes or hours over their captures and editing. Should the former not be granted a Copyright for their images because "they just got lucky"?

[Bartholomew]

copyright, saveguarding humanitys future!

By preventing machines from owning property!

First they own a painting, then it is a full art portfolio, and before you know it the machines own a whole gallery, next it is the street and then a whole city.

When it comes to prevent the machine uprising, copyright got your back. And if that fails miserably, we can always strap EMP's to the copyright lawyers and use them as cannon fodder.

[ecofeco]

Re: copyright, saveguarding humanitys future!

I wish to subscribe to your newsletter.

[MachDiamond]

Re: copyright, saveguarding humanitys future!

"First they own a painting, then it is a full art portfolio, and before you know it the machines own a whole gallery, next it is the street and then a whole city."

The art market will then change and only 'art' by 'real' artists will have much value and everything else will be made in China and sold by size in pound shops. Jackson Pollocks stuff sells for a fortune even though the exploding paint can 'artists' do pretty much the same sort of thing. Leave it to an AI to mimic Jackson's style and it's even more yawn.

I'm all for strapping nuclear weapons to attorney (only way to generate an EMP worth anything). There are so many lawyers these days that putting them before a firing squad wouldn't be fast enough and more are graduated than rifle bullet manufacturers could keep up with.

[Anonymous Coward]

Re: copyright, saveguarding humanitys future!

*This comment written by ChatGPT.

[Felonmarmer]

Questions not answers.

Midjourney and others give the user a method of refining the images generated by selecting one of the generated images to create varients of so that's some human agency. Also you can refine the prompt to change the nature of the generated images.

Surely the author of the comic book could claim she took the generated image into Photoshop and applied some manual changes, does that not add human agency, even if it's only cropping?

If a generated image is not copyrightable, then what does that do to the court case claiming copyright infringement for the training data?

[Michael Wojcik]

Re: Questions not answers.

If a generated image is not copyrightable, then what does that do to the court case claiming copyright infringement for the training data?

Irrelevant. A derivative work does not itself need to be eligible for copyright in order for it to be violating a prior copyright.

[CatWithChainsaw]

Amateur "authors" are flooding Amazon with books made of ChatGPT prose and Midjourney/SD/DALL-E2 artwork. Now I can make books of similar "quality" by using the exact same images - half the work is done for me. The possibilities are endless.

[gbchew]

Utterly predictable.

US law is heading towards giving ownership and copyright to the people who can marshal the resources required to build, operate, own, and market AIaaS systems.

The point of the current set of rulings is to slow-walk toward a legal framework wherein it is possible for a Midjourney clone to sell licenses to consume and commercially u$e the output of their system, while retaining copyright and ownership in-house.

The AI is the going to be the art, you dig? The developers will be the artists. The user is just wallet on legs that generates marketable user preference and training data as they use the system for entertainment.

Expect the AI itself to be legally defended, the corporation to be empowered, and the consumer-users to be reduced to dues-paying subscriber licensees (for an extra fee).

The real money is not in generating static images, it's in generated live stereoscopic video. You get there by using millions of paying human customers to train an AI to generate static images, and you track them over time as they enter new prompts. The current crop of AI users are training the systems that will replace them.

Capital is going to start moving when you can generate and deliver a convincingly high FPS stream of conceptually interconnected image frames, along with an audio channel, driven by realtime end user biometrics.

Keeping AI users firmly within the precariat (if that's where they started) is the goal. Giving a kid with $20 the ability to generate copyrightable artifacts that allow them to change their economic fortune and become upwardly mobile is off the table. It's going to remain off the table for as long as captive regulators can keep propping up the over-capitalized technocrats that pay bureaucrats to pretend that the private equity pyramid isn't a just a social compliance tool.

[doublelayer]

Re: Utterly predictable.

In fact, the ruling appears to make your proposed goal less likely, not more. By ruling that a machine's output can't be copyrighted, they prevent the operators of such systems from adding "we automatically copyright the output before you see it" clauses to the terms, because they aren't allowed to copyright them either. It would also prevent them from turning on a copyrighter bot that just copyrights everything it can in the hopes that someone will eventually write the same thing.

[Michael Wojcik]

Re: Utterly predictable.

The real money is not in generating static images, it's in generated live stereoscopic video.

There's plenty of real money to be made in generating conventional video. That's what most video creators do now. Stereoscopic video is currently very much a niche market.

There's plenty of real money to be made in generating pop music. If the ads I've been seeing on Hulu are any indication, the bar for that is certainly low enough that you could do it with a pseudorandom prompt generator feeding into an LLM for lyrics, and generating music that fools human judges is a long-solved problem – we had systems doing that successfully in the 1990s.

There's plenty of real money to be made in generating prose for magazine articles and niche-interest books. Publishers like Icon Publishing Group have been doing that for decades.

Machine-generated popular-cultural products have been with us for a while. They'll be more with us in the coming years, assuming civilization doesn't collapse.

It's worth noting that for centuries we've had artists serving primarily as brands, signing off on works they had relatively little to do with the creation of – your Thomas Kinkaides, James Pattersons, Tom Clancys, etc. And we've had ghost writers and paper mills and the like. That sort of thing is clearly under imminent threat by "AI" content generation, because it very quickly becomes cheaper to automate that kind of production rather than paying less-famous artists¹ to do the heavy lifting.

¹I'm going to disregard the question of relative talent completely here.

[Omnipresent]

Free Rein

On the edm kiddies. Finally.

[that one in the corner]

Re: Free Rein

Electrical discharge machining by kids? "Now class, while we sweep him up, can anyone tell me what Johnny did wrong?"

With respect to artworks and randomness, please don't stab the electrode into a piece of suitably earthed damp wood.

[Groo The Wanderer]

It is going to get real interesting when people start trying to copyright code produced by GitHub tools. I wouldn't be surprised if it has already happened. But that, to me at least, is a clear case of you not creating the work in question.

[Michael Wojcik]

People already are trying to do so, if Microsoft are to be believed. They claim there are quite a few users of Copilot who are committing Copliot-generated code, and how many of those projects have a copyright notice that explicitly excludes anything created by Copilot?

The problem here would be anyone trying to enforce those copyrights, because the defendant can raise the issue of Copilot-generated code to muddy the waters.

[cosmodrome]

Told you so.

You might just have asked the AI:

"Ts an Al able do to real art?"

"As of my knowledge cut-off, artificial intelligence (AI) can create art in a limited sense,

but it does not possess the same level of creativity, intentionality, and self-expression as a human artist.

Al can be trained to generate images, music, and other forms of art by using algorithms and large datasets. For example, an Al system can be trained on a dataset of images and then generate new images that are similar in style or content to those in the dataset.

However, the art generated by Al is not the result of a deliberate and intentional creative process, but rather the outcome of mathematical calculations based on patterns in the data. While the results can be visually interesting or appealing, they lack the depth and meaning that are often associated with human-created art.

Moreover, AI lacks the capacity for self-expression, introspection, and the ability to reflect on its own experiences and emotions, which are fundamental elements of human creativity."

[John Brown (no body)]

Re: Told you so.

"While the results can be visually interesting or appealing, they lack the depth and meaning that are often associated with human-created art."

That's where ChatGPT comes in. It can provide the bullshit explanation of what the image "means" :-)

[Michael Wojcik]

Re: Told you so.

Yawn. Can we stop posting ChatGPT-generated completions? That became uninteresting in 99% of cases pretty much immediately.

[ecofeco]

Shocked I tell you!

That's... actually an intelligent ruling.

[throe a. wai]

Anything that reduces copyright protections is good with me

The system of copyright/patent/trademarks have been so heavily abused and co-opted by corporations that at this point anything that reduces them is fine with me. Unfortunately once corps find a way to monetize AI gen'd work this decision will likely be reversed.

[KirkTheTinker]

GOT TO BE HUMAN TO ENJOY COPY RIGHTS?

Mr Spock would be quite offended.

[jake]

Re: GOT TO BE HUMAN TO ENJOY COPY RIGHTS?

To be offended, being tightly linked to emotion, is quite illogical.

[Anonymous Coward]

MidJourney isn't just random

If you provide a source image as a starting point for subject matter, a particular person or pose for instance, then give it very specific requests in terms of content, colours, feel and what style you are expecting, then you can get very close to an image you were probably envisioning. In fact, if you've used MidJourney for a couple of weeks you start to see very recognisable styles created by certain keywords appearing in the image results over and over, which makes it entirely possible to finetune your boolean input to get very close to a specific end product. It's not all down to chance.

So, if you have indeed provided a source reference for the bot to base its results on, then does that have an impact on the copyright status of the final image? Surely it should do.