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this post was submitted on 29 Sep 2024
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You can copyright a combination of words, though, and it was his unique combination that created the art. The artist doesn't copyright the palette, and the shop that sold the pigments holds no ownership over the painting. If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
It has to be fixed in a tangible medium.
In this case they’re not “fixing” their words and the final art is the created expression. Yet in this case their created expression wasn’t created by them but the program.
In this case their combination is the palette and paint but the program “interpreted” and so fixed it.
For example you can’t copyright a simple and common saying. Nor something factual like a phone book. Likewise you can’t copyright recipes. There has to be a “creative” component by a human. And courts have ruled that AI generated content doesn’t meet that threshold.
That’s not to say that creating the right prompt isn’t an “art” (as in skill and technique) and there is a lot of work in getting them to work right. Likewise there’s a lot of work in compiling recipes, organizing them, etc. but even then only the “design” part of the arrangement of the facts, and excluding the factual content, can be copyrighted.
You cannot copyright a recipe, but you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.
Can a person who works with wood and creates something unique from the wood then copyright their design crafted from the wood? What makes it art and not just glue, iron nails, and dead trees? This is what needs to be defined with AI. Right now everyone is so happy to jump on the anti-AI bandwagon that they blind themselves to issues regarding the law by claiming the art is lawless at best and stolen at worst, when in fact it is simply a new tool and a new medium.
Did authors who used typewriters rail against the new word processor? What about the editor that checked for grammar and spelling? Did they try to burn down spell and grammar checks in microsoft word? Is the art any less art if it has been created with a tool that allows for more ease than has been available in the past? Should we boycott the bakers that do not mill their own wheat? Or does the sourdough bread belong to the wild yeast cultures, and so owed recompense for all we have taken from it?
The argument can be made until the universe burns out, or we can accept that art is made by sentient life, and any tool used in the production of it cannot be considered an owner of that art, and if the only sentient lifeform involved in the creation of that art wishes to claim it as their own, then they should have the right to protections for their work.
No, you can neither copyright a recipe nor the food or drink it produces.
Food and drink is only protected by trademark law. You are free to make a burger that tastes exactly like a Big Mac, you simply can't call it a Big Mac.
I’m not Anti AI. I have fun making stuff with it.
But the copyright laws as they are don’t apply. And if they did it would open a can of worms legally.
The recipe can’t be copyrighted. The cake produced can’t be copyrighted. But the packaging or style of a cake with your brand could be trademarked which is a different legal ball of wax entirely
Using stuff like controlnet to manually influence how images are shaped by the ML engine might count, there's some great examples here (involving custom Qr codes)
https://medium.com/@ssmaameri/ai-generated-qr-codes-with-controlnet-huggingface-and-google-colab-a99ffeee2210
In general these art pieces are not created simply with words. Users control the output using ControlNet which allows drawing on the image to force regeneration only to specific areas. It seems that if your only logic around it being non-copyrightable is due to them using words and that the program “does it all”, but that’s just not how it works.
I’m not in favor of copyrights for stuff like this, but you have a terrible misunderstanding of how these art pieces are created and it’s affecting your argument negatively.
Hard disks are pretty tangible.
But if they are not as you suggest, does this mean all digital photography is not copyright able?
So many arguments as to why this shouldn’t be subject to copyright seem to fail simple questions of logic.
If the output of ML isn’t copyright able, then the inputs should not be subject to copyright either. The whole system is broken and only serves to enrich the few at the expense of the many. It doesn’t protect the small time artists, only the exceptionally wealthy ones who earn more than the typical worker will make in many lifetimes.
Here’s more if you’d like to read about it.
https://www.copyright.gov/engage/visual-artists/
I remember when the DMCA was introduced and all the various issues arising from what and isn’t copyrightable when it comes to digital vs physical copies, etc.
Again I’d like to recommend Leonard French (Lawful Masse) on YouTube and Twitch for a copyright lawyers breakdown of these kinds of issues.
If I use a combination of words to commission an artist to paint a picture, I don't own the copyright on that picture.
If it's a commission, you might. Depends on the how the contract is worded.
Okay, let's see the contract in this AI case that grants this man the copyright.
The contract is set by the company, let's say Midjourney, which passes ownership to the person who generate the "art." What needs to be defined is if ai generated art is art? So far, no one seems to have a definite answer. I come down on the side of yes, but there are a lot of others that say no.
Which company passes the ownership to the person in its contract? Midjourney does not, I just looked:
https://docs.midjourney.com/docs/terms-of-service
They make it clear that you do not own the copyright on the images you create. Did the artist suing the copyright office use this company?
https://help.midjourney.com/en/articles/8150363-can-i-use-my-images-commercially
In no way does Midjourney own the image, they only have the ability to "reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute".
That has absolutely nothing to do with who owns the copyright. I already quoted to you from their own ToS and linked to it.
It has everything to do with what the copyright gives them the right to do, which is: reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute". They cannot claim ownership of the art. If you were to create art that is illegal, they do not own it and are not responsible for that.
And since you want to quote the TOS, here is the first part which you ignored:
You said it was based on the contract. The ToS literally says Midjourney owns the copyright. This is pretty cut-and-dried.
I'm getting really tired of trying to explain this to you. Their copyright does not give them ownership, it gives them very specific rights. These rights are:
If you create CSM with Midjourney, they are not the owners and it cannot be used to sue them. They don't want that smoke. They do not want ownership. They make it very clear in the part you skipped over that you own your work, they simply own the right to "reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute".
This is literally all about copyright. Hence the copyright office being sued.
so its literature, then?
Sure, the artist doesn't copyright a palette, or the shop does not hold ownership of pigments. But Companies do patent pigments.
If you commission an Art piece, with a detailed description of what it should display. The artist comes back to you with a draft, you tell them to adjust here and there, and you finally after several rounds of drafting got the commissioned art piece. Did you draw it?
Thats what LLMs do and nothing else.
Is the diction of the buyer to the artist in the final paragraph of your argument make the painting a novel? You have you answer.
Yes, companies can copyright specific pigments, but that doesn't give them ownership over the paintings created by them, only protect for their own IP vis-à-vis the pigments. In the same way, the company that created the LLM may protect their work but hold no ownership on the art it produces.
Who drew the art is of no import when the artist isn't a sentient lifeform. By your definition, a photographer cannot own a picture because the camera captured it.
What does the company protect here? The system, or the model? Which the latter being ill-gotten by scraping already copyrighted content?
It was an allegory. The supposed artist is the commissioner and the LLM being the artist. And since you can't copyright something you didn't made, well tough luck getting copyright on AI slop.
No, because as a photographer you hold the tool in your hand. You can adjust everything, even the subject. And its all in your own control and it takes your skill in managing it to shoot the perfect photo.
If we would take your interpretation of my definition, then nobody can own anything since they always have to use a tool to create something.
It’s a good analogy but one thing to consider is that the artist is the copyright holder.
The company that directed it only has the copyright either by explicit contract transferring rights or because it’s a work for hire where the employee’s copyright work is “automatically” transferred to their employer.
Some interesting case law on that from Disney artists, comic book authors, etc
https://copyright.gov/circs/circ30.pdf
That depends on what is proprietary to the company. If they have created the system and the model, then both.
That is a highly subjective point of view. Let's look at music. If a musician loses their arms and can no longer play an instrument, but instead dictates the chords to someone else to play, who is the artist? Who can claim ownership of the piece?
Spoken like someone who has never used an LLM before and thinks it magically produces exactly what you want on the first time, every time.
No, that's everyone else's argument. Mine is that the tool is the LLM, and that when art is created with it, it should be open to copyright.
Then that musician becomes the composer who can copyright the sheet music. The one who plays the chords becomes the performing artist and can copyright the performance.
I have used LLMs extensively, several versions and types. I know how that shit works. And no I do not think that its results are deterministic and accurate.
The LLM is the "artist" as it produces the image. And you can't claim copyright for someone else.
No, you cannot copyright a pigment. Companies can use colors as trademarks, but that just means that competitors can't use the color in a way that would confuse customers. For example, you can't start a courier service with vans that are the same color as UPS vans, because that might confuse customers.
You are still free to use that color in ways that are unrelated to UPS, for instance as an eye shadow.
Patents are another matter entirely. You don't patent the color, but you might be able to patent the media (e.g. a new formula for quick drying paint).
Then the real artist, the AI, should request the copyright. And sue the charlatan that tried to take its work and claim all credit.
And the camera owns the photograph, and Photoshop owns the digital image, and Final Cut Pro owns the film? The tool owns nothing. The tool is incapable of ownership
Thus the value of the art is reduced to an idea and the human labor invested. The labor is practically zero and an idea is worth nothing. That means there is nothing worthwhile to copyright
Wow.