Artist Appeals Copyright Denial For Prize-Winning AI-Generated Work (arstechnica.com) 75
An anonymous reader quotes a report from Ars Technica: Jason Allen-a synthetic media artist whose Midjourney-generated work "Theatre D'opera Spatial" went viral and incited backlash after winning a state fair art competition-is not giving up his fight with the US Copyright Office. Last fall, the Copyright Office refused to register Allen's work, claiming that almost the entire work was AI-generated and insisting that copyright registration requires more human authorship than simply plugging a prompt into Midjourney. Allen is now appealing (PDF) that decision, asking for judicial review and alleging that "the negative media attention surrounding the Work may have influenced the Copyright Office Examiner's perception and judgment." He claims that the Examiner was biased and considered "improper factors" such as the public backlash when concluding that he had "no control over how the artificial intelligence tool analyzed, interpreted, or responded to these prompts."
As Allen sees it, a rule establishing a review process requiring an Examiner to determine which parts of the work are human-authored seems "entirely arbitrary" since some Copyright Examiners "may not even be able to distinguish an artwork that used AI tools to assist in the creation from one which does not use any computerized tools." Further, Allen claims that the denial of copyright for his work has inspired confusion about who owns rights to not just Midjourney-generated art but all AI art, and as AI technology rapidly improves, it will only become harder for the Copyright Office to make those authorship judgment calls. That becomes an even bigger problem if the Copyright Office gets it wrong too often, Allen warned, running the risk of turning every artist registering works into a "suspect" and potentially bogging courts down with copyright disputes. Ultimately, Allen is hoping that a jury reviewing his appeal will reverse the denial, arguing that there is more human authorship in his AI-generated work than the Copyright Office considered when twice rejecting his registration.
As Allen sees it, a rule establishing a review process requiring an Examiner to determine which parts of the work are human-authored seems "entirely arbitrary" since some Copyright Examiners "may not even be able to distinguish an artwork that used AI tools to assist in the creation from one which does not use any computerized tools." Further, Allen claims that the denial of copyright for his work has inspired confusion about who owns rights to not just Midjourney-generated art but all AI art, and as AI technology rapidly improves, it will only become harder for the Copyright Office to make those authorship judgment calls. That becomes an even bigger problem if the Copyright Office gets it wrong too often, Allen warned, running the risk of turning every artist registering works into a "suspect" and potentially bogging courts down with copyright disputes. Ultimately, Allen is hoping that a jury reviewing his appeal will reverse the denial, arguing that there is more human authorship in his AI-generated work than the Copyright Office considered when twice rejecting his registration.
Re:Copyright the prompt (Score:4, Insightful)
How would he copyright the state of Midjourney at the time he issued the prompt?
No copyright to grant (Score:5, Insightful)
Here's the quandary:
If the artist gets a copyright on this work, then will it be profitable to generate millions of random images based on computer generated prompts and claim copyright on all of them?
Then in the future, use image matching search to find any near copies of those generated images and file a lawsuit for copyright infringement?
The scale currently is
- No AI - artist does the entire work on her own ...
- Minimal AI - The artist asks for sample line, charcoal, crayon, etc. primitive images from an AI and then creates her own image using none of the AI images
- Some AI - The artist generates small parts of the background of an image using AI, such as less than 5% of the total image's area
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- Major AI - The artist generates an AI images, prints it out and then paints over parts of it
- Total AI - The artist generates an AI image using only AI prompts
The question is at which level will a copyright be granted by the copyright office.
Prior legal statutes in a similar vein (Score:2)
The copyright system will need a large restructuring if computer generated images, music, books, poems, songs, product designs, etc. are allowed to have a copyright. The issue is that with an AI, a solo person could generate hundreds of thousands of variations on a theme and claim copyright on them all.
Suggest: Re-introduce a copyright registration fee and require copyright to be filed with the copyright office to receive the legal benefit of copyright. Require every 10 years, a small fee $10 adjusted upw
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Sounds a lot like arguing photographs shouldn't be copyrightable.
Photographs are not computer generated (Score:2)
Physical film base photographs and digital photographs are not computer generated.
https://jcms-journal.com/artic... [jcms-journal.com]
The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art
and
https://www.theartnewspaper.co... [theartnewspaper.com]
"A recent judgement on copyright in the Court of Appeal (20 November) heralds the end of UK museums charging fees to reproduce historic artworks. In fact, it suggests museums have been mis-selling “image licences” for over a decade. For those
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"The issue is that with an AI, a solo person could generate hundreds of thousands of variations on a theme and claim copyright on them all."
Or could just shoot a bunch of frames with a camera do do the same thing. In either case a mechanical device 'produced' the 'work' with a person guiding it. I know, it's all so newfangled.
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A plain reading of the constitutional basis for copyright allows for a case that journalistic photographs maybe shouldn't be.
But then it gets dicey about what is art and what isn't and the government (or juries) defining it.
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Sounds like we're realizing imaginary property shouldn't be.
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Sure does. How about this?
Artist / nature photographer sets up cameras all along an animal trail in the woods. Automatic cameras, taking photos whenever anything passes in front of them. They take a few cool photos of wildlife out of hundreds snapped.
Since these are created entirely mechanically, with the 'artist' maybe not even being in the same zip code at the time of the photo, can these photos of wildlife be copyrighted by the artist?
A year ago, I'm sure the answer was "of course", without a second's
Re: Prior legal statutes in a similar vein (Score:2)
Besides, since you need a registration to actually enforce a copyright claim, why bother to make registration mandatory ab initio?
Re: Prior legal statutes in a similar vein (Score:4, Insightful)
I think the problem is more that copyright and intellectual property law in general is incompatible with reality.
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Copyright as a whole needs some restructuring.
Class I: Copyright is of a public good (formerly known as Public Domain), and thus no permission or license is required to use beyond not stripping the original copyright from the thing. (Think of things like the Ghostbusters Theme by Ray Parker Jr., The "Happy Birthday" theme, Gustav Holst's "Planets"), No copyright will be permitted of deviations (eg covers, and any generative "infill" AI based on it.)
Class II: Partial Copyright on a larger whole (eg Film and
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Re: No copyright to grant (Score:2)
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No, because the copyright system is based around human creativity relative to the work, so if they're churning out millions, by definition they're not putting any meaningful creative effort in to each individual image.
The best that could be argued is that the entire work of millions of images are one collective work, and that eno
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You don't need AI for that. A random generator is enough to create thousands of images and hope they have some similarity with future images. But you underestimate the space of possible images.
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Another option is use AI generated art to prevent copyrights. The idea is to have a computer generate all the content and release it publicly. This has already been done within a single octave of music. https://www.vice.com/en/articl... [vice.com]
I don't think this has been tested in court, but the idea is even a human can't copyright it if it's already been released even if it was created by a computer. It's a scorched Earth idea. I doubt it will work for music and is intractable for images.
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And there you have it. If the artist can't reproduce the art, is that art really from that artist?
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How would Jackson Pollack fit in?
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Assuming you mean Pollock, there are a few key differences. First, the question of authorship was never a question with any of his art. Second, he was able to reproduce similar if not identical pieces of art. Third, a significant part of his art is his process, which certainly came from him.
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The person you're talking to literally just directly questioned Pollock's authorship with respect to the standard that you're wanting to use with AI. You don't get out of this that easily.
So can AI artists. And indeed, if the seed is set, they can produce literally pixel-for-pixel identical versions. And any variations of degree of similarity from "identical" t
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I think we agree on some bits. My understanding is that in this case, the artist only produced the prompt, which means for example they cannot reproduce the same work by fixing the random seed if someone changes something on the generative model (addressing my second point here). If they did train the model themselves then it would be a different story.
Regarding the third point, I am not arguing that anyone who doesn't develop a new process should not "qualify for protection". I was merely saying that in th
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Secondly, are you really sure that you want to argue that anyone that doesn't develop an entire new art style / process shouldn't qualify for protection? And do you want to apply this to, say, photographers, digital artists working in photoshop, 3d artists working in Blender, etc?
Not copyright protection. If you want to protect a process for doing/making something, you're welcome to apply for a patent if it's novel enough.
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The 99,99999% of all registered copyrights should be ruled invalid.
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Probably like this. [saatchiart.com]
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seed = 1234
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How would Jackson Pollock, making a splatter painting, copyright the state of his brush at the time he made it splatter?
Pollock wasn't choosing how every bit of splatter was going to end up. He did however start with a concept, controlled the broad strokes of how he was making the image appear, threw away any that he didn't like, and kept at it until he got something that matched his vision of what he wanted to achieve.
The irony is that - if not running Flash Attention (or running it in deterministic mode)
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threw away any that he didn't like, and kept at it until he got something that matched his vision of what he wanted to achieve.
You can copyright the curation of content. Just look at maps. You can't copyright facts, but you can copyright a particular curation of them. Introducing special flaws is how you prove someone copied it but it's not part of what makes it copyrightable.
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That is exactly my point.
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How would he copyright the state of Midjourney at the time he issued the prompt?
How would a photographer copyright the state of Nature at the time he pressed the shutter button?
Two photographs of the same location taken at the same time by two different photographers are each copyright to the respective photographers.
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This is, rather, the argument Walsh is making.
The current Copyright Office standard allows for the protection of work based on human actions on the outputs - selection and modification - but not the inputs - prompts and settings. The Copyright Office did however carve out a big "based on our current understanding", things-will-change-with-time hole, and their reasoning on why should already allow for protection of things like ControlNet, or even
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Copyright the end product, just like my phone camera with AI enhancement.
Is this theft? (Score:1)
Re:Is this theft? (Score:4, Informative)
Because no artist ever studied the work that preceded them before creating their art. Right?
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Because no artist ever studied the work that preceded them before creating their art. Right?
That is pretty much the basis of it all. There is very little new under the sun. For my photography, I'm heavily influenced by Brett Weston.
So art is pretty much tweaking things, other than the group of goofballs that try to see what they can get away with, and the idiots they can convince that they are creating art - think Damien Hirst https://www.thecollector.com/d... [thecollector.com] Yeah, kill an animal, put it in a glass box and watch it rot away.
Now of course, art is what you can get away with, and that twatwaffl
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In my opinion, this line of thought ought to be irrelevant when it comes to deciding what copyright law should look like.
Copyright is an enforced monopoly on the *distribution* of a creative work.
How a human being created the creative work or obtained the copyright (rights can be traded) is largely irrelevant, unless they broke a law while creating it. Be it by using someone else's material and falsely representing it as their own, or because they engaged in some other illegal activity as part of the produc
Re:Is this theft? (Score:4, Informative)
Yeah, I think the human mind works the same way. Are you gonna claim that anybody that went through school owes infinite copyright to previous generation starting with use of the alphabet and number system?
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That's the question, isn't it? Are we just machines or is there something special about us, and ostensibly other living creatures by extension? So far, it's unproven either way, and anyone who says different is selling something (probably either AI software on one hand, or a holy book on the other.)
So far the law has taken the view that we are special, and that is frankly the only thing that makes sense. Humans need protection from oppression, software doesn't (although humans need software to have certain
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Correct
Incorrect.
The Copyright Office is being inconsistent (Score:1)
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The claim could be made (in this case) that Midjourney modifies the original prompt in ways that are hidden from the user and the resulting work is a collaboration.
At that point, you might as well claim that a compiler partially owns your code as a collaboration. I don't even buy that part.
Prompt Engineering (Score:1)
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The important aspect of the engineering degree is not the accredited institution.
The important part of engineering is the stamp and the associated responsibility. The stamp says "This design obeys commonly understood engineering principles and I certify it's not going to kill anyone if implemented as specified and take full responsibility for those outcomes."
There is none of that in so-called software engineering. Taking that concept one step further into the sociological realm, I don't think there's anyth
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You're right. When I paint a painting, I shouldn't get the copyright. Rather, the people who designed and engineered the paintbrush should hold the copyright.
Nikon should be a mass copyright holder, owning the rights to every photo ever taken with a Nikon camera.
This makes sense.
You diminish the value of words (Score:2)
You diminish the value of words, or even a single word.
"Dreams" by Langston Hughes
Hold fast to dreams
For if dreams die
Life is a broken-winged bird
That cannot fly.
Add "nude" to pretty much any Stable Diffusion prompt and it changes it a whole lot.
The same holds for LLM prompts, if you know the right words.
We need less (Score:4, Insightful)
IP laws, not more
Artist? (Score:2)
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What if you created artwork from a mathematical formula, or used one to modify a basic image to make it visually interesting? What if you use a CNC machine or 3D printer to make a sculpture?
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You can't copyright math per se, but a representation based on math is the question. If the underlying formula is obvious in the manifestation then it looks more like math than art-- but where is the line?
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What's the difference between someone using one of these systems and using a synthesizer? Given the same synthesizer model and input settings, isn't the variation then purely based on the notes played? What if those notes are played by a sequencer and not a person or generated programmatically? Is that person not an artist?
I agree with your point regarding so-called artists that use AI tools but I would also contend it's not as clear-cut as it may appear.
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This sounds familiar. [csus.edu]
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"Esthetics Engineer"?
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Art isn't limited to just the ability to create aesthetically pleasing works. It's not even limited to creating static works.
Certainly a piece like "The Treachery of Images" [wikipedia.org] isn't interesting because of its creative visual style. It's still art because of the expression of ideas. Even if you don't like it. If it was originally created by an AI image generator it wouldn't lose anything artistically.
where is the threshold? (Score:2)
If I use some AI tool to replace the background on one of my images, I still own the full copyright. If I use some AI to generate a full image from my prompt and then do some post-processing, I own no copyright. Can someone define the exact threshold where I lose the rights? To me, the distinction is very vague.
If you understand what "copyright" IS... (Score:3)
then you understand both why he lost, and why he must ultimately lose at the end of whatever string of appeals are deployed.
In the United States, it's a basic HUMAN right (what some would call a "God-given" right... in other words a right that even trumps majority rule because it was not granted by some group of humans) to have control over what you create on your time, with your tools and your creativity. In order to improve society and encourage creative people to give the public access to the results of their efforts, the founders of the country established the "copyright" (a thing, which may be thought of as a right to make copies of a work). By default, the copyright for any work belongs to the person who created the work, but that person may sell, trade, barter, etc that right to another party (like a book publisher, or movie distributor). For as long as the copyright is in force, only persons holding/granted that copyright have the legal right to make copies of a work. The bargain struck is that in exchange for government power enforcing that copyright on behalf of the creator of a work, after the copyright expires, the work becomes public domain and any other person my copy the work and use it or even base other works on it. The presumption is that the creator of the work has had his chance to profit from that work and the expiration witll encourage him to create more works.
The emergence of corporate monsters like Disney, and the ability to bribe... errr... "lobby " and "support" politicians to manipulate the duration of the copyright and the idea of massive immortal corporations highly-dependent upon copyrights have introduced lots of distractions/confusion to the arguments. At the core, however, is the concept that "copyright" is a HUMAN right.
Con-artist maybe (Score:2)
Pretends to make art.
Simple litmus test (Score:2)
Something should be copyrightable if it can be considered created in a uniquely creative way.
i.e. Can some random lay person playing with prompts replicate the picture in such a way that copyright law would consider the output infringing on the other image? If so then it's probably not worth copyrighting. If on the other hand it takes actual skill of someone who knows what they are doing to get to that point then the result should be subject to copyright.
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Not even the artist can recreate the image without a stored set of parameters, because these images are extrapolated from (pseudo-)randomness. The nature of the prompts is selective, not creative. Unless you can't play five songs in the same order as on my mix-tape without paying me royalties for my artistic genius, these images deserve no more copyright than the output of /dev/urandom.
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Please learn what a seed is.
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Oh intelligent one, please enlighten me. I mentioned stored parameters and pseudo randomness, but the meaning of these words eludes me. I beg your forgiveness.
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AI artists can recreate the exact same work by using the exact same seed value and inputs. So your entire argument makes no sense. They DO have the "stored set of parameters". In fact, these parameters are often stored in the image metadata, thus causing the image itself to contain the means of its own creation. Some go even further: with ComfyUI, it's common to store entire image generation pipelines in the metadata of an image, to the point that you can load the image as a workflow and have hundreds o
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Those are stored parameters, numbnut. Unless they can remember the seed value and inputs verbatim and guarantee that the "AI" they used hasn't been retrained, they can not recreate their "art". The prompt is not enough, and certainly not a prompt that looks very very similar. So what this boils down to is: Anyone who has all that data can recreate the image or nobody can. The artist didn't create the image. He chose it randomly from more images than could be looked at by all of humanity until the heat death
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It's in the image itself. They do have it.
Furthermore, you absolutely CAN reverse it from the image without any metadata. That's literally what unCLIP and its ilk are. I can unclip an image of you and put you into different situations, without having to train a custom model on it.
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Which part of "anyone can or nobody can" do you not understand? The point of this discussion is that there allegedly is a creative element to the "art" and to prove it, consider that other people can't recreate the "art". But without the stored parameters or the image itself as a base, neither can the "artist", and with the data, anyone can, so this is a bullshit test.
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That's a nonsensical standard you're promoting. The exact same thing could be said about, say, a 3d artist's work. Either you have their .blend file or you don't.
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Reread from the start of the thread and pay attention to who wrote what.
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Not even the artist can recreate the image without a stored set of parameters, because these images are extrapolated from (pseudo-)randomness.
That is false, these images are seeded and thus can be recreated. But I didn't say perfectly recreate. I said recreate in a way that would be considered copyright infringing. If you ask Davinci to redraw the Monalisa the brushstrokes would look slightly different too.
Unless you can't play five songs in the same order as on my mix-tape without paying me royalties for my artistic genius, these images deserve no more copyright than the output of /dev/urandom.
Funny you bring music into this given that artists are paying each other royalties over simply notes not even using the same timing. I.e. All royalties from Bitter Sweet Symphony go to the rolling stones for the simple fact that a completely di
I have a solution (Score:2)
Here's a solution: make the prompts inputted to the AI copyright, but the artwork itself in the public domain. Surely then everyone is happy - the author gets what he wants (copyright protection for HIS part in the whole thing) and we aren't left with any complicated "is it or isn't it?" questions.
Next time use Sausage Principle (Score:1)
...don't tell anyone how it was made.
Interesting potential "downside" (Score:3)
If AI art isn't copyrightable, there are a lot of online image (or music, or video) generators out there who say you need a subscription to use the generated works commercially.
If you generate it yourself, this means the most they could come after you for is a TOS violation. But if you find the picture in a Google Image search and copy it (knowing it was for sure AI generated), then it's a free for all.