from Hacker News

AI-assisted art – A mixed decision from the copyright office

by VanL on 2/22/23, 10:39 PM with 60 comments

• by mjr00 on 2/23/23, 12:34 AM

  > I have come to the conclusion that that almost every work created by an AI tool should be copyrightable, even without the iterative refinement and post-processing that Kris performed. The more I search, the more I see similarities with photography and the long copyright battles over what minimum amount of creativity is needed to support the copyright in a photograph.

  I think this is shortsighted; this opens up a space for "AI copyright trolls" who generate images for popular prompts in an automated fashion to get copyright, then go after people using AI art who happened to hit the same seed and prompt. Admittedly unlikely, but it could happen, and might eventually even be worth the GPU time depending on how popular AI artwork becomes (and how fast GPUs get).

  In any case, I don't see why the unaltered, or in this case extremely minorly altered, image output itself should be copyrightable. It's like two people going to Venice Beach to record the waves at the same time. They each have copyright over their specific recordings, but they can't copyright the sounds of the waves itself; the other person is free to do what they want with their own recording of the same sound. The same way that if you generate a Midjourney image with a specific prompt/seed, I should be able to use the same settings to generate the same image and do what I want with it.

• by danShumway on 2/23/23, 1:47 AM

  What's the argument for why prompt generation deserves copyright protection that doesn't also imply that commissioning a piece of artwork deserves copyright protection?

  If I go to a human and ask them to draw me an image, I will iterate and collaborate with my prompt just as much if not more than I would for an AI generated image. I'll look through multiple pictures and point out things I like and dislike. But I won't get joint copyright over the final image unless the artist gives me a contract assigning it. We recognize that collaboration with a human to describe a final image isn't something that usually falls in the narrow range of copyright.

  So the argument around prompt generation seems like it has much wider implications than most copyright-expansionists are saying. I don't understand how to grant AI images copyright without granting a bunch of other stuff copyright too. And traditionally, we don't think of commissioning as a copyrightable act, even though it arguably has very similar elements of creativity that are being talked about here.

  Is there a creative human input into an AI-generated image that isn't present when commissioning or working with a human artist? Because otherwise we're talking about a frankly massive expansion of copyright that should probably be approached with a lot more caution. I mean, some of these arguments I see for granting copyright are getting really close to outright saying that deciding what to draw should be treated as creative enough to warrant protection. That's a wild thing to say, that has so many implications beyond just AI images.

• by yegortk on 2/23/23, 1:20 AM

  I think this is most significantly a policy issue. Under the existing US law, minor human input could be enough to make AI copyrightable through the "modicum of creativity" argument. However, if this allows for massive amounts of content to be generated (semi-)automatically in much shorter amount of time and with much less effort than what was possible before, it seems strict and generous copyright protections granted to creators of such works by society through the current law are no longer really warranted. In the end, copyright exists to provide motivating reward for creative effort - if such reward is no longer really necessary to enable close-to-infinite creative image generation, the law really may need to be altered to prevent copyright trolls and other nastiness of that nature.

• by fwlr on 2/23/23, 12:03 AM

  It is so unusual to see clear and precise analysis on this topic. I particularly appreciate this turn of phrase, describing what Stable Diffusion does: “pull from an artist-chosen place in its massive table of probabilities to drive the generation of an image.”

• by xp84 on 2/23/23, 1:09 AM

  I don't know how I feel about the main question of AI copyright-ability*, but do disagree with the idea that if the outputs of a tool used by the artist are very random, it means the end product is not creativity.

  The Jackson Pollack example cited in the article is apt. Lots of artists use randomness-infused techniques, and select their final product from among many random versions based on what came out the best.

  *However I am pretty confident that the result will eventually land on "Works created by big media companies, even done entirely using AI, are fully copyrightable."

• by Reptur on 2/23/23, 12:37 AM

  Did they award Copyright to Netflix's animation short "Dog and Boy"? I am curious to see how they treat the small proprietor vs the big corporation.

  Info: https://arstechnica.com/information-technology/2023/02/netfl...

• by andrekandre on 2/23/23, 12:52 AM

    > First, that's not the right legal standard. The standard is whether there is a "modicum of creativity," not whether Kris could "predict what Midjourney [would] create ahead of time." In other words, the Office incorrectly focused on the output of the tool rather than the input from the human.
  

  if the input is a prompt that anyone can write.... for example if i wrote "elephant with blue skin" into midjourney and someone else also did, and we get exactly the same image or a totally different image, it doesnt matter does it?

  how does "elephant with blue skin" or any other prompt meet the criteria of 'modicum of creativity'?

  in the end, its the tool that is doing the heavy lifting and being able to copyright its output sounds against the spirit of copyright (allow a human to get proper compensation for their creative work and incentivize creativity) imo.

  is there something obvious i am missing?

• by Normal_gaussian on 2/23/23, 12:39 AM

  Is there an agenda or bias here on the side of the USCO? Perhaps taking an extreme anti-ai position allows them to flesh out their exact position (with time and reflection) and ensures they don't have to 'strip' copyright later (only grant it), which presumably would be contentious if payouts have occurred?

• by jay_kyburz on 2/23/23, 2:43 AM

  How about this for a completely new take on copyright.

  The amount of money you can make via copyright protection should be in direct correlation to the amount of effort that went into generating the creative work.

  If you type a prompt into a machine and it spits out an image. 30 seconds of work, copyright will protect you until you have made a reasonable profit for your time.

  If a movie company puts 10000 person months into a big blockbuster, copyright will protect them until the move has made a reasonable profit.

  If you choose never to monetize an artwork, it remains in copyright for the maximum time.

  I have no idea how you would value a photographer being in the right place at the right time.

• by natch on 2/23/23, 1:06 AM

  Very odd to read such a writeup that while seemingly pretty comprehensive, nevertheless completely misses mentioning of alternative tools like InvokeAI (yet another wrapper around Stable Diffusion) that allow, at least in the web GUI version, significantly more granular control over the output by the human artist.

  Good article, but the landscape is a lot bigger than what this article would suggest. And, even more obviously, constantly growing.

• by williamcotton on 2/23/23, 1:29 AM

  So just don’t tell anyone what tools were used and you get a copyright?

• by __loam on 2/23/23, 2:10 AM

  I hope all these AI companies get their asses handed to them by the courts. The amount of uncompensated labor required to build these systems is totally staggering.

• by ROTMetro on 2/23/23, 6:00 AM

  If I ask Bob R to paint me a picture of a fish wearing a small yellow hat I don't own copyright to the results just because I gave the original prompt.

• by matt3210 on 2/23/23, 1:53 AM

  Just don't say they're AI generated

• by yieldcrv on 2/23/23, 12:31 AM

  someone should AI-assist their website layout, there are already a couple products for this.