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Comment by andrekandre | Hacker News Reader

  > 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?

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> if the input is a prompt that anyone can write

Pressing the button, on an already setup camera, is something that anyone can do as well, and they will get the exact same camera output as anyone else.

To be clear, pressing a button is not copyrightable.

The decision about where to take a picture, what settings to use, and how to take it is the creativity that grants the image copyright. There are various arguments about which parts of prompt generation and refinement might register as copyright and there are various arguments about how tuning settings and tuning prompts is similarly creative to using a camera, but the point is still that unless the user input is sufficiently creative, the image wouldn't get copyright. The button doesn't matter; the button is not what gives you copyright.

In fact, numerous accidental photos have been denied copyright; most famously when PETA sued a photographer over a picture that was taken when a monkey stole the photographer's camera. The court's decision was that nobody owned the photo. It was an accident, it wasn't the result of a creative decision. There was not enough human creativity involved in the process of a monkey stealing a camera to warrant protection.

Of course, it's somewhat of an oversimplification of prompt engineering to phrase it as just saying "elephant with blue skin", but if that was the entire creative input, it's not clear at all to me that someone saying "I want an image of an elephant with a blue skin" is a sufficiently creative input that it should be copyrightable. What the AI does with that prompt is irrelevant, it's the human creativity that matters. Same with photography; the camera isn't really the important part. The machine isn't what is generating the copyright. The person making a conscious decision about where to stand, what settings to use, and when to press the button is viewed by the law as a creative act that requires creative skill and execution. The button press itself doesn't matter.

Again, to be clear, prompt generation tends to be oversimplified in these conversations and I'm not saying there's definitely nothing creative happening, but if we take that simplified version of prompt generation at face value, then just saying what image you want... does that really meet a creative standard?

Because saying that descriptions/requests on their own are sufficiently creative for copyright protection has implications far beyond AI art; it implies that commissioning a piece of artwork even from a human being should be enough of a creative act that I should get joint copyright over the final image. If the argument is that prompt generation is more than that, and that it takes more skill, then fine -- but if the argument is that even just a one line description of what image you want should be counted as creative... yeah, that's a pretty significant expansion of copyright that will affect a lot more than just AI art.

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Edit: I think people also get a little confused about the difference between how people generally treat photography and what the law would decide if the copyright on every single image was challenged.

If I set up a camera mounted to a pole, focused on a static scene, and you walk over and press the button on the camera, legally you very likely don't have any copyright over that image. But practically, nobody is going to challenge you over it.

It's possible that some of the photographs where people say, "well that gets copyright, why doesn't mine?" might not actually get copyright if they were ever challenged. But people generally don't challenge copyright status in the first place. Recipes, APIs, monkeys, (and apparently now AI images) are the rare exceptions.

> The decision about where to take a picture, what settings to use, and how to take it is the creativity that grants the image copyright.

Indeed that is the case! And all the factors that you are talking about, could apply just as much to AI art. I am glad that you reject this idea, that "Lul, its writing a prompt, dude, therefore AI Art can't be copyrighted!"

> but if that was the entire creative input

> it's the human creativity that matters.

Sure, if we want to say that someone spending 10 seconds, writing a 3 word prompt isn't much human input, fine.

But, for anyone who has spent more than an hour, messing around with AI art, you will quickly learn that there is so much more to AI art than the degenerate case.

> The person making a conscious decision about where to stand, what settings to use, and when to press the button is viewed by the law as a creative act that requires creative skill and execution.

All of which can be applied to AI art. It can be so much more complicated, than the stupid argument that I see over an over again, which is "Lul, the computer did it. No human input".

To give a personal example, one thing that I did, was that I created a dreambooth, fine tuned model, for creating magic items, for the game Dungeons and Dragons.

https://huggingface.co/stale2000/sd-dnditem

It took me about 100 hours, over the course of 2 weeks, to get this art generator, exactly right. And the process involved, not just typing a few words like "Give me magic fire sword please".

Instead, it involved the process of collecting, modifying, captioning, and combining exactly the correct training set of images, into my training set, recreating and retraining my model over a dozen times, until I could get it to do even close to what I wanted.

Even one bad image or one bad setting, that I put in my training set, could screw up the whole model, or make the swords look weird, or mess up the painting style, or any numerous actual creative differences.

> If the argument is that prompt generation is more than that, and that it takes more skill, then fine

That is what it is, for anyone who has done anything in AI art. But people's brains for some reason, stop working when they are faced with the fact that there is so much more that you can do with this stuff, and the stupid strawman case of "lul, I just typed a couple words into a prompt! No human input!".

Which, fine, I'm much more sympathetic to the argument that prompt generation and tuning is creative. I'm not necessarily on-board with it because there are different categories of creativity (APIs and recipes certainly require creativity, but we somewhat arbitrarily classify them as inventions instead), but the point is it's a decent argument for people to make, and I could plausibly see it winning in a court.

I'm just trying to point out, it doesn't have anything to do with the button, or AI, or technology. It's not a good analogy for people to say "you just point a camera at a thing, and that deserves copyright" -- if that was the case, the camera wouldn't get copyright either. Neither prompt-generation nor photography is getting granted copyright based on the decision to press a button, there has to be something more complex going on in both situations for copyright to get involved.

An accidental photograph, a photograph that's made by simply iterating over every possibility in a space, a photograph that's a reconstruction of an existing copyrighted work without changes, etc, etc... none of those are copyrightable, and that they're made with a camera doesn't make them copyrightable. IP law for photography is the same as for anything else; the machine isn't the important part.

In the scenario you describe, if someone mounts a camera someplace and two people press a button and get the exact same photo -- I would be surprised if that second photo has copyright protection, it probably doesn't meet a threshold for human creativity.

The prompt is not a creative expression, it's more like a cooking recipe, hence is not copyrightable.

I agree, following a recipe doesn't make someone a chef.

If you're somehow at the helm of a plane, car, boat and you don't have the training, but it drives itself, you aren't a pilot, driver, captain, you're a passager.

AI Art is made by passagers, not an artist.

iPhone owners aren't photographers.

At any rate, "elephant with blue skin" is a fairly basic prompt. You can go into excruciating detail with prompts spanning many many paragraphs, specifying lighting, perspective, positioning, colors, clothing, styles, patterns, etc etc etc.

Within a given domain, if you are very exacting with your prompting and start doing things like adding in weights, you can do things like eg. create portraits of your friends, or of characters you've imagined, or basically make things that you can either see or imagine.

There's a new problem though. You can easily make a picture of 1 thing/person/concept, but if you have more than one, they share the prompt.

Say you have an ever so slightly modded Stable Diffusion checkpoint, and say you want a picture of a

  1boy with short_hair, 1girl with (long_hair:1.3)

Now these instructions are fighting each other. If you run a batch, you'll get

* a few images with what you thought you wanted (a boy with short hair and a girl with long hair),

* in some cases you'll get a boy and a girl both with long hair (because the long_hair:1.3 overrides)

* and in some cases you'll get a single person, who happens to have long hair (because of the long_hair:1.3) , and who is more likely to be female (because of implication: long hair was more commonly associated with females in the original dataset).

Of course, if you're smart, you might think to exploit this ambiguity on purpose.

On the gripping hand, this is obviously insufficient control.

So now we're getting newer systems that allow you to chain/layer prompts and apply different prompts with different strengths to different domains of your illustration. This means that you can have eg. your male character on one side, the female character on the other side, and deal with things like room decoration, the view from the window, and specific props - all with separate prompts.

And this is just applications of txt2img. There's also things like img2img, inpainting, and... well... new tools are showing up every week it seems.

If this hasn't crossed back into the creativity sphere already, it probably will by next month, and else the month after. (By manner of speaking)

How about more complex prompts?

If "print 'hello world'" is not copyrightable does that imply that more complex programs are also not copyrightable?

> "elephant with blue skin" or any other prompt

I don't buy it. The space of prompts is pretty big just at the length of a few lines. You'll find guides and how-tos on how to write the prompts you want, seems quite the complex and creative endeavour to me!

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