An artist who infamously duped an art contest with an AI image is suing the U.S. Copyright Office over its refusal to register the image’s copyright.
In the lawsuit, Jason M. Allen asks a Colorado federal court to reverse the Copyright Office’s decision on his artwork Theatre D’opera Spatialbecause it was an expression of his creativity.
Reuters says the Copyright Office refused to comment on the case while Allen in a statement complains that the office’s decision “put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work.”
The philosophical depth of so many comment threads on this post kind of highlights the issue with AI and intellectual property rights.
By definition, AI leverages existing work, crucially in a way that usually does not credit or benefit the original creator.
If I took two images from random creators, cut one out, and pasted it onto the other: have I created a new work? Is it a copyrightable work? (I genuinely don’t know the answer to that).
“artist”
He’s already made a greater impact on art than those who created images themselves.
So he’s an artist in the sense that a guy with a sledgehammer is a builder.
Good luck, buddy. AI output has already been ruled not copyrightable. As it should be.
Copyright and patent laws should die altogether.
““my work””
He did not make it. He essentially commissioned a machine to create an image for him using millions of pieces of art that were stolen from artists. It’s no different from commissioning an artist to draw something for you, except the artist turns out to be someone who traces bits of other people’s art, or copy and pastes it, and then you attempt to take credit for it instead by claiming that you made it. I predict that this lawsuit is not going anywhere as he does not have a proverbial leg to stand on.
What if he wrote the technology himself? Would that count?
What about games with “procedural generation” - does that count?
Last I checked, procedurally generated games all exclusively use their own internal assets. Apples and oranges.
Authors didn’t invent the alphabet. Painters didn’t invent colors. It’s rearranging pre existing work in a way that makes sense to the rules of a new system. Need a stronger definition to explain the difference.
Edit2: I wrote this in response to the first comment I read but after reading rest of thread I wanted this more visible. I’m not karma whoring and didn’t mean to spam the comments posting this twice but the comments here are all engaging as fuck but feel like they’re all circling around what im specifically pondering.
So why can’t he copy right the prompt which created it? Obviously not being 100% cereal about this specific scenario but in the early days of GPT4 I fed it fucking dissertation length prompt threads writing ridiculously niche and in depth scripted functions. I don’t know how to code but used a tool to create something extremely useful for my job. Some of the project took weeks to fully put together.
So what Im really asking is, why would it matter if I used cnc lathes to make something id want copywrited/patented or if I use a LLM to make it? Should it be any less protected because it’s taking the “muscle” or “legwork” out of it? Should engineers only design prototypes destine for copywrite/TM/R/patent office if the prototype can be made on manual machines? Again, I kinda understand I went over the top with this but I am fascinated with how the fuck people are guna come up with regulatory frameworks to define the modern age of intellectual property and all the TM/C/R/P drama to follow.
Edit: To expand, the shit I have made using GPT having limited but interested experience with IT work also didnt stike me as anything marketable until I got feedback from vendors and customers I gave it to but from reps that didn’t know I made it. It’s not the point of me asking I just thought itd help anyone who is guna respond to see that my questions are coming from more of a manufacturing a tool type of understanding rather than the AI toookurjerbs from the suffering artist or musician type of understanding.
I’m taking the bait.
The art he prompted was drawn from and trained by art that wasn’t his. The art was created by unsuspecting artists and then was blundered together like a frog until it created the image. He may have edited the image later on with a 3rd party program. But that’s still altering art built from an amalgamation of others art.
And this isn’t the same as line tracing or referencing other’s art because that still requires the user to put pen to paper and wholly create something by hand. Or hand to digital modeling software. Something that actually takes hours of work and concentration. Not coming back to your PC to change the wording in your prompt and then walk away for an hour or whatever while it blends stuff together for you.
If the original creator of the art work should get the copyright then the thousands of artists who drew the original training material should get those copyrights.
This is the same problem with AI in other fields. It’s drawn from the work of humans.
Moreover, I don’t want to remove the human element from art ever.
no artist to begin with
they can copyright the prompt, right?
In my experience with AI image generation, the same prompt, run several times, produces different images each time.
The reason the image is different using the same text prompt is because it randomly generates a seed for each time it runs. Presumably the copyright would include all the settings, including the seed. All of that kept the same will produce the same image, every time.
The copyright office’s policy isn’t perfect, but denying copyright to AI slop is probably the best we can expect from the system as it currently exists.
Besides I’m pretty sure you can still use AI in the production of an image and still claim copyright on the final image, just not any of the raw generations.
This is correct. If a painter uses AI to generate a concept and composition, then does a classical oil painting of it on canvass they can claim right to the image of the oil painting.
It’s no different than an artist painting a public park or forest. They can’t copyright that location, but they can copyright the painting of that location.
So why can’t he copy right the prompt which created it? Obviously not being 100% cereal about this specific scenario but in the early days of GPT4 I fed it fucking dissertation length prompt threads writing ridiculously niche and in depth scripted functions. I don’t know how to code but used a tool to create something extremely useful for my job. Some of the project took weeks to fully put together.
So what Im really asking is, why would it matter if I used cnc lathes to make something id want copywrited/patented or if I use a LLM to make it? Should it be any less protected because it’s taking the “muscle” or “legwork” out of it? Should engineers only design prototypes destine for copywrite/TM/R/patent office if the prototype can be made on manual machines? Again, I kinda understand I went over the top with this but I am fascinated with how the fuck people are guna come up with regulatory frameworks to define the modern age of intellectual property and all the TM/C/R/P drama to follow.
Edit: To expand, the shit I have made using GPT having limited but interested experience with IT work also didnt stike me as anything marketable until I got feedback from vendors and customers I gave it to but from reps that didn’t know I made it. It’s not the point of me asking I just thought itd help anyone who is guna respond to see that my questions are coming from more of a manufacturing a tool type of understanding rather than the AI toookurjerbs from the suffering artist or musician type of understanding.
I never meant to imply that things, or parts of things created with an AI shouldn’t be able to be copyrighted, but as the law is now that’s how it works. Things might change in the future to more directly address this, which is what this current case is doing.
As for copyrighting the prompt that could get tricky. For example you can’t copyright a title, but you can copyright a literary work.
So if your prompts are that long you should be able to copyright the prompts as literary work, but someone who just types in “brown cat” isn’t going to be able to and shouldn’t be able to, because copyrighting the concept of a brown cat in general is silly. What about "fat, brown cat.?’ Well, someone is going to have think very hard about how long the prompts have to be before they are eligible. That’s not even considering the prompt part, just the right to your written concept before it becomes a prompt.
I’m hoping it’ll work out fairly eventually. I work in professionally in traditional media so it’s not something that effects me, but I do have a basic understanding of copyright laws(as they are) to share.
But I do see your point about it being a tool. Like if my paint brand tried to say I don’t have a right to the work I created with their paint I’d be pissed, but that’s a lot less complicated(legally speaking) to parse out than AI generated stuff because we don’t yet have precedents for that.
Plus all the unethical and exploitive AI scraping that’s been going on that no one agreed to has left a lot of artists kinda bitter towards AI… so there’s not a lot of sympathy in creative communities towards it’s use right now. If they could use it more ethically I think you’d see a shift in attitudes fairly quickly.
“Artist” needs to be in quotation marks.
The problem is “intellectual property” and capitalism more generally. As technology makes art harder to define and control, the absurdity of violently controlling art will hopefully collapse along with capitalism in general.
Intellectual property as a concept is incompatible with the continued advancement of human knowledge. Before copyright and patenting, we still had trade secrets and sensitive information, and those things cost us insights into metalworking we are still slowly recovering to this day. We still can’t figure out how Roman’s stumbled upon some of their glass blowing breakthroughs, and we just recently figured out Roman concrete.
Capitalism didn’t invent greet, but it’s certainly allowed greed to flourish as a core precept of its design.
its debatable who the artist is, however, because if you remove the ai from the picture he could never have made this, and if you remove the training data the results would also be different.
Realistically: everyone whose data this was trained on should be included as authors if its not just public domain
everyone whose data this was trained on should be included as authors if its not just public domain
Weird how we make this rule only apply to computers.
I doubt any human artist would make the exact same works as they have if they were not influenced by the art that they were.
There were similar debates about photographs and copyright. It was decided photographs can be copyrighted even though the camera does most of the work.
Even when you have copyright on something you don’t have protection from fair use. Creativity and being transformative are the two biggest things that give a work greater copyright protection from fair use. They at are also what can give you the greatest protection when claiming fair use.
See the Obama hope poster vs the photograph it was based on. It’s to bad they came to an settlement on that one. I’d have loved to see the courts decision.
As far as training data that is clearly a question of fair use. There are a ton of lawsuits about this right now so we will start to see how the courts decide things in the coming years.
I think what is clear is some amount of training and the resulting models fall under fair use. There is also some level of training that probably exceeds fair use.
To determine fair use 4 things are considered. https://www.copyright.gov/fair-use/
1 Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
This is going to vary a lot from training model to training model.
Nature of the copyrighted work.
Creative works have more protection. So training on a data set of a broad set of photographs is more likely to be fair use than training on a collection of paintings. Factual information is completly protected.
-> Amount and substantiality of the portion used in relation to the copyrighted work as a whole.
I think ai training is safe here. Once trained the ai data set usually doesn’t contain the copyrighted works or reproduce them.
Effect of the use upon the potential market for or value of the copyrighted work.
Here is where ai training presumably has the weakest fair use argument.
Courts have to look at all 4 factors and decide on the balance between them. It’s going to take years for this to be decided.
Even without ai there are still lots of questions about what is and isn’t fair use.
No but you don’t get it, they wrote a couple words and also they know how to use the spot healing brush in photoshop, they’re a REAL artist!
To be somewhat fair this prompt probably took quite a bit of work. Still way less than even producing it digitally but not a couple words.
because if you remove the ai from the picture he could never have made this, and if you remove the training data the results would also be different.
How is this different from any other art? Humans are “trained” on a lifetime of art they’ve observed. Are they to attribute all of their art to those artists as well?
Human beings aren’t automatons.
Yes, and…
It’s a bit more nuanced than that, because a human can still develop artistic skills by observing non-artistic creations beforehand.
For instance, the world’s very first artist probably didn’t have any paintings or sculptures to build off.
I’m not saying I necessarily agree that the person isn’t an artist because they rely on external training data, but generative AI models most certainly need to observe other works to ‘learn’ how to make art, whereas humans don’t necessarily have to. (Although if someone were to make a reinforcement learning model based on user feedback as a way to entirely generate better and better images starting from random variation, that would make the original training data point moot)
Hmmm. This comment made me realize that these ai images have something in common with collages. If I make a collage, do I have to include all the magazine publishers I used as authors?
Not defending the AI art here. Imo, with image generating models the mechanisms of creation are so far removed from the “artist” prompter that I don’t see it any differently than somebody paying an actual artist to paint something with a particular description of what to paint. I guess that could still make them something like a director if they’re involved enough? Which is still an artist?
I dunno. I have my opinions on this in a “I know it when I see it” kind of way, but it frustrates me that there isn’t an airtight definition of art or artist. All of this is really subjective
It comes down to how transformative the work is. They look at things like how much of the existing work you used and how much creative changes were made.
So grabbing your 9 favorite paintings and putting them in 3x3 grid is not going to give you fair use.
Cutting out sections of faces from different works and stitching them together into a franken face could give you enough for fair use if you made it different enough.
I don’t know how collages work, but samplers do pay every single artist they are sampling for their use of the song.
if you make a magazine collage you’ve already paid all the magazine authors for their work by buying the magazine. I know its not perfect, but at least in a collage situation there is some form of monetary trail going back to the artists.
If the AI company were to license their training data this would be an almost perfect metaphor. But the problem is we’ve let them weasel in without monetary attribution.
Oh gee so scammers aren’t getting protection for lying? Dang what a cruel world poor him…
/s
Womp womp
If you didn’t make it how the fuck can it be stolen from you?
Machine output cannot be copyrighted. Whether prompt tweaking and the other stuff involved in making AI art is enough for something to not be considered machine output is still to be decided by the courts.
He spent weeks on fine tuning tbf
It’s like photography: Photographers often spend weeks trying to get the perfect shot, should they be allowed to copyright it?
Weeks? That shit can be done in mere minutes.
“I have been exploring a special prompt that I will be publishing at a later date, I have created hundreds of images using it, and after many weeks of fine-tuning and curating my generations, I chose my top three and had them printed on canvas,” he writes.
He’s still not an artist.
Another thought experiment: If I hire an artist and tell them exactly what they should draw, which style they should use, which colours they should use etc does 100% of the credit go to the artist or am I also partly responsible?
According to these people, YOU become the artist, and the AI is the artist.
Normally, if you’re commissioning a piece of art for commercial purposes, you would have some sort of contract with the artist that gives you the copyrights. Otherwise, the copyright belongs to the artist that produced the work, even if you buy the product.
But does the artist get 100% of the credit? Ignoring copyright for now, this is just a thought experiment, who’s getting how much credit?
Then there needs to be a copyright ownership agreement between the artist in the article and the artists’ whose work was used to train the AI…
It’s nothing like photography. It takes zero special training to feed an AI a prompt. Yes, photographers, who held their camera, who spent years honing their craft, learning the ins and out of the art of photography, who put their bodies in the field to capture real life, yes, they should be able to copyright their work.
It absolutely takes training to familiarize yourself with the model and get the results you want.
Copyright or not doesnt change time and effort that can be spent on prompting. Theres no reason to have an objective stance against people that want to explore it.
No, it doesn’t.
Rejection of reality? Because you dont like ai?
So you could create a targeted result with prompts/iterations as well as someone who has practiced with midjourney since it came out?
Yes, photographers, who held their camera, who spent years honing their craft, learning the ins and out of the art of photography, who put their bodies in the field to capture real life, yes, they should be able to copyright their work.
Pull out your phone. Open the camera app. Click the button. You just did an art.
Pull out a pen. Scribble your stick men. You just did the last supper.
I didn’t say a good art. But a work sufficiently creative as to be covered by copyright at the least.
If I order an art piece by someone, and reject thousands of finished pieces for it to not meet my standards, will i become an artist?
According to anyone in the Stable Diffusion communities, yes. And as a matter of fact, because I responded to you, I am now a novelist.
If I take lots of photos, print out and frame one of them but delete the others, will I become an artist?
If I order an photograph by someone, and reject thousands of finished pieces for it to not meet my standards, will i become a cameraman?
you see here the thing is “I Take” you did the thing,
What about “I Generate”?
your not doing the work, you are telling the computer to do the work based on words you typed in, at best you could argue you own the copyright to the prompt you typed in, but not to what the computer generated. You did not generate, the computer generated
“you’re not doing the work, you are telling the camera to do the work based on a setting you found / created, at best you could argue you own the copyright to the setting, but not to what the camera captured. You did not take a photo, the camera took it”
How is that meaningfully different from “the camera generated”? Both result in a full image from a single input.
While some just snap a photo. And both are equally copyrightable
If anyone deserves copyright over an AI generated image, it’s the people that had their art used without their permission to train the AI. Then, the people most deserving of the copyright are the software engineers that developed the AI.
it’s the people that had their art used without their permission to train the AI.
This is the least coherent argument I keep seeing against AI art… Every art student in the world trains on the works of other artists. They explicitly study the works of great masters to learn their techniques. But when an “evil corporation™” does it it’s now theft.
It’s literally wanting the laws to reflect who is doing something rather than wanting them to be applied fairly.
There is a difference between studying techniques, ideology, history, and mediums to be able to use a style created by another artist in your own creative works, and putting all the creative end products into the ideas blender and churning out a product with no creativity and no intentionality to the application of the process. What’s the end game? At what point does human creativity become redundant and AI starts eating its own slop? Do human artists need to keep creating depictions of meaning or value or whatever else they find important to endlessly feed into the machine so it can duplicate them, missing any of the metaphor, subtext, and soul present in the original? At what point is it obvious that workers are having their labor stolen by the tech bro Soylent Green idea machine to enrich them at the expense of whoever’s life work they seemed to be slop worthy of regurgitation.
AI can be an excellent shortcut or a great tool, and help us make our work easier and products better, but it is not a creator of original creative works, and cannot be validated at the same level as human artists. I, for one, would like to see a future where artists don’t just exist to feed into their machine betters.
AI can be an excellent shortcut or a great tool, and help us make our work easier and products better, but it is not a creator of original creative works
An AI image doesn’t just pop into the universe apropos of nothing. I don’t think you can say there is zero creativity in the process. A human sat down, conceived of an idea, and used a tool to create it. What is at the core of debate is whether the result is a creative work made by the human or not.
I agree that the AI is not the creator of the work. But I’m not so quick to say that the person wasn’t either… Cameras have a lot of stuff they do for the human. You can’t credibly say that you create any photo you take with your phone. The billions of transistors and image processing algorithms do that. You chose what to point it at and when. And maybe some technical parameters. And when you prompt an AI you have full creative control over what goes into it as well. Hell - you could probably even copyright the prompt if it’s sufficiently creative! But not the resulting artwork?
We may not value AI art as much as we do traditional arts. But I’m very hesitant to say that it is not art at all.
Photography has far more depth, complexity, and creativity as an artform and comparing it to AI both misunderstands the process and does it a huge disservice. Even before lining up the shot, the photographer must choose the right focus length, exposure, and a number of other technical settings, then must choose a subject, perhaps modify the composition, and have the right timing.
Photography can be as simple as pointing a phone camera for a well timed moment or snapping a once in a lifetime shot with an expensive lens. AI art takes orders of magnitude less creativity or training to do well, because it’s stealing the work of people that have already learned the composition techniques and have done the legwork, which is just being shoddily regurgitated by the plagiarism machine.
Right, learning their techniques, not cutting out pieces of said master art and pasting it onto someone else’s work. There’s already predecent for this when that one monkey took a photo and the guy that provided the: camera, scene and direction was denied the copyright because he didn’t do the work.
https://en.m.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
Right, learning their techniques, not cutting out pieces of said master art and pasting it onto someone else’s work
Tell me you know nothing of art without telling me…
https://en.wikipedia.org/wiki/Colored_Mona_Lisa
https://www.artsy.net/artwork/yasumasa-morimura-sen-cun-tai-chang-portrait-futago
And AI doesn’t just “copy paste”. Have you not seen anything created by AI? People act like it’s just re-creating existing works for some reason.
If anyone deserves copyright over a picture of something, it’s the people that made that thing that had their thing used without permission to be the subject of the photograph. Then, the people most deserving of the copyright are the engineers that developed the camera.
Your argument is erroneous. You’re equating photography to AI art creation. That was your first error. Attempting to make my argument seem ridiculous by reappropriating my sentence structure and offering no real counterpoint was your second error.
