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Opinion: The Copyright Office is making a mistake on AI-generated art
(arstechnica.com)
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this post was submitted on 22 Sep 2023
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Technology
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I think your understanding of AI art tools is a bit limited. Its not all solely based on prompt. Prompts are the part of most of AI art but its not the only part of it. There are things like inpainting, outpainting, img to img, outside guidance (controlnet for SD), loras, etc. Hell that doesn't even get into doing touch ups in other photo manipulation software where you can maybe get a general gist with art generator then draw over the output to get it closer to your real vision. Right now most people are only talking about the most bottom of the barrel stuff. Even though the user above hates that people are comparing photography to Ai art, the amount of "effort" required for the most bottom tier stuff (you posting a selfie of you doing duck lips or some other stupid trend) is at a similar level. Noone is arguing photographers don't put a ton of skill and knowledge into their work but it seems unfair we only compare the most shit tier AI art to the true artistic end of photography instead of equating it to you take a picture of your food. Yes there is some level of effort to it but its acting like AI art requires 0 effort. You put as much effort into it as you would anything else. A use case I would love to see as the tech advances, we are seeing a ton of CGI in traditionally animated shows. Wouldn't it be better to get a model that is trained on that specific character so you create the original scene in cgi, you run a AI art pass frame by frame, once that is done it should look far closer to the traditional style and have normal artists touch up the scene, which they already do with CGI.
I will also state since SD 2.0, they have respected robot.txt (them ignoring it prior wasn't great).
Copyright is not meant to reward effort. This is a common misconception. Thirty years ago there was a landmark SCOTUS case about copyrighting a phone book. Back then, collecting and verifying phone numbers and addresses took a tremendous amount of effort. Somebody immediately copied the phone book, and the creators of the phone book argued that their effort should be rewarded with copyright protection.
The courts shot that down. Copyright is not about effort, it's about creative expression. Creative expression can require major effort (Sistine Chapel) or take very little effort (duck lips photo). Either way, it's rewarded with a copyright.
Assembling a database is not creative expression. Neither is judging whether an AI generated work is suitable. Nor pointing out what you'd like to see in a new AI generated work. So no matter how much effort one puts into those activities, they are not eligible for copyright.
To the extent that an artist takes an AI generated work and adds their own creative expression to it, they can claim copyright over the final result. But in all the cases in which AI generated works were ruled ineligible, the operator was simply providing prompts and/or approving the final result.
You make a fair point but as I said people keep focusing only on prompts. So when people see the takeaway that "Oh AI art isn't copyrightable" it means very little since noone in an actual industry is going to give out a raw render (well they shouldn't). So that is why I pointed out other tools in AI art. Like inpainting and img to img can easily make it or break how much we influence the AI. You are still using all the AI besides scribbling on paint on top of your raw then rerendering it.
Most of these court cases are primarily on prompt only images. So yes, its great we have the line of well duh if an artist does "sufficient" touch ups its back to being but the question becomes what is sufficient. Would it be sufficient if you still used mostly AI tools especially ones that give the users far more control over what they are rendering (Going to focus mostly on SD since it gives far more versatility than most of its competitors) like if you only use image to image. You posted your own art and it does it thing and bing bang boom is it copyrightable? Img to img only, probably is a low bar and may not get over the hump to be copyrightable but inpainting probably has a far more likely chance to be since it can factor in many things that the "curator" is wanting.
We are at a time when people are very hot on this topic. I just feel some artists are going a bit too insane with this, I understand their anxieties but its quite easy to lose sight and make draconian demands about this future especially the ones who are suggesting that you can copyright a style. Such suggestions are asinine and will hurt everyone including themselves.
The question "what is sufficient" basically amounts to convincing an official that the final work reflects some form of your creative expression.
So for instance, if you are hired to take AI-generated output and crop it to a 29:10 image, that probably won't be eligible for copyright. You aren't expressing your creativity, you are doing something anyone else could do.
On the other hand, if you take AI-generated output and edit it in photoshop to the point that everyone says "Hey, that looks like a ThunderingJerboa image", then you would almost certainly be eligible for copyright.
Everyone else falls in between, trying to convince someone that they are more like the latter case. Which is good, because it means actual artists will be rewarded.
These are my thoughts as well. It seems obvious that putting in 'cat with a silly hat' as a prompt is basically the creative equivalent of googling for a picture.
But, as you say, that sort of AI usage is just dumb, bottom tier usage. There's going to someday be a major, critical piece of art that heavily uses AI assistance in it's creation and people are going to be surprised that it's somehow not copyrightable under the laws and rulings they're working on now.
I remember in the LOTR behind the scenes they talked about how WETA built a game l like software to simulate the massive battle scenes, giving each soldier a series of attacks and hp, etc. They then used this to build out the final CGI.
Stuff like that has already been going on for ages and it's only going to get more murky as to what 'AI art' even means and what is enough human creativity and editing added to the process to make it human created rather than AI created.
A hand coded simulation in house is the definition of creative expression. Using a product to essentially Google an image is not, I don't see how this is a hard distinction.
Perfect example is Corridor Crews second anime battle video. Or Joel animation on YouTube. There is more to those than just using an AI to get an image of short video
The distinction is that you need to actually use the product in a realistic use case before you can pass judgement on its use. You're judging cameras on the basis of selfies. This thread is full of explicit examples of how actual artists use this to assist in their work. Please read that.