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Comment by Retric | Hacker News Reader

Timing is only one aspect of creativity.

In most settings a video camera’s output is copyrighted because of how you select the location and angel to film. Motion capture has all of those elements, and simply doesn’t capture 99.9% of the possible images. ie: Someone picked a log crossing the river as a place where something interesting will happen and they setup the shot to look interesting.

Which is the general argument why such setups fall under copyright. Though as always there are many edge cases.

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There is so many places to inject creativity into the process.

Before the capture you have: Chosing the location, posing the camera, adjusting objects in the background, setting up bate to attract wildlife, choosing optimal camera settings. Even selecting a camera could be considered a creative input.

After the capture, the artist can choose which of the thousands of captures best fits their vision, crop it and applying color correction.

I don't think a single one of those actions can make it a creative work on its own. But when you combine a few of them along with intent, it becomes a creative work.

You can do most of that with prompting and tools like control net in stable diffusion as well. And then take it into photoshop and do changes, feed it back into img2img and inpaint until your hearts content. One can spend multitudes more time than it too to tap the shutter button on an iPhone. In Midjourney of course, you have far less control.

There's a ton of control that prompt crafting alone gives you. There's also the choice of which version of midjourney to use, and various meta options that it gives you.

The copyright office clearly has not the slightest clue about what they're talking about when they claim that the AI is the sole creator here. AI generated content has always been a collaboration with humans, and there's always human creativity involved.

You can own the copyright to the prompt used to generate the output.

But the algorithm isn’t collaborating, every possible outcome is fixed when the algorithm is finalized and users can’t actually change the possibilities. I clearly don’t own the copyright to my Google search results even if my query is quite unique.

The essay that has helped me most to think about this sort of thing has been Brian Eno's Composers as Gardeners.[1] It's about music, but I think it applies equally well to AI-generated art, where humans collaborate by writing the algorithms, choosing the subjects, providing the prompts, and curating the results.

Here's an excerpt:

"...essentially the idea there is that one is making a kind of music in the way that one might make a garden. One is carefully constructing seeds, or finding seeds, carefully planting them and then letting them have their life. And that life isn't necessarily exactly what you'd envisaged for them. It's characteristic of the kind of work that I do that I'm really not aware of how the final result is going to look or sound. So in fact, I'm deliberately constructing systems that will put me in the same position as any other member of the audience. I want to be surprised by it as well. And indeed, I often am.

"What this means, really, is a rethinking of one's own position as a creator. You stop thinking of yourself as me, the controller, you the audience, and you start thinking of all of us as the audience, all of us as people enjoying the garden together. Gardener included.

"We're used to the idea, coming from the industrial and very intelligent post-Enlightenment history that we have, we're used to the idea that the great triumph of humans is their ability to control. And indeed, that must be the case, to some extent.

"What we're not so used to is the idea that another great gift we have is the talent to surrender and to cooperate. Cooperation and surrender are actually parts of the same skill. To be able to surrender is to be able to know when to stop trying to control. And to know when to go with things, to be taken along by them. And that's a skill that we actually have to start relearning. Our hubris about our success in terms of being controllers has made us overlook that side of our abilities. So we're so used to dignifying controllers that we forget to dignify surrenderers...

"...my idea about art as gardening is to sort of revivify that discussion and to say let's accept the role of gardener as being equal in dignity to the role of architect, as in fact, is shown in this lovely pavilion here."

[1] - https://www.edge.org/conversation/brian_eno-composers-as-gar...

Simply planting a tree doesn’t give you copyright of the shape the tree ends up in the way you would on a sculpture.

That’s been the case for a very long time, you need significant control over the specific output because it quantifies. A garden is copyrightable based on the layout of the plants when that involved creativity.

That’s been a legal distinction for a very long time, and this statement is simply consistent with that history.

> But the algorithm isn’t collaborating, every possible outcome is fixed when the algorithm is finalized and users can’t actually change the possibilities.

But that actually reinforces the idea that all of the creative work is in the prompt, everything else is purely mechanical process implementing the command given by the prompt. Arguably, its analogous to saying that a programmer can copyright the prompt but not the resulting image is like saying I can copyright source code, but can have no copyright on the output of the compiler.

Compilers don’t create a new copyright the output is covered as a derivative work.

However, derivative works have clear limitations and the output of a chat program doesn’t qualify any more than you own the copyright of what someone says when you interview them.

Put another way you don’t own the copyright on the specific shape of a tree as a sculpture because you selected its species when you planted it.

> Compilers don’t create a new copyright the output is covered as a derivative work.

A derivative work is a separate work that, considered apart from the one it is derived from, separately has the required creative input to be a copyrightable work, and it does, in fact, have a separate copyright from the original (creating derivative works is an exclusive, but licensable, right of the copyright holder of the original, but the copyright of a derivative is separate.)

I don’t know if that distinction was intended as a limitation, “sound recording” is listed as a derivative work in the statute. It also clarifies that “Copies” are material objects, other than phonorecords

So, mechanical transformation such as rendering a webpage at 150% scale is seemingly a derivative work even if there isn’t any creativity in the process.

I would argue that location and angle to film are analogous to specifying that you want a poem (as opposed to an essay) about copyright law (as opposed to quantum mechanics) in the style of William Shakespeare (as opposed to John Milton).

Basically, those are very broad parameters specified, and the machine is the one that decides to produce the output. You aren't even picking the timing or the subject or likely even the focal length. The machine is doing that based on its algorithms (and with autofocus) even the focal length.

It’s not just location and angle but where to aim the motion capture sensor, what if any bait to use etc. There’s effectively infinitely many possible ways to set of these things.

With chat bot’s every possible response is predetermined when the algorithm is setup. Saying you should get copyright is like saying you should own the results of a search engine response to your query.

How is setting up a motion camera on a log not similar to setting up a prompt for ChatGPT?

The camera doesn’t decide what to put on the picture?

It does… or at least the human doesn’t.. it’s motion activated

Motion capture rigs are doing capture whatever trees/rocks/buildings etc the person setting it up aimed at. The only thing motion capture does is pick interesting times, but you can write software that does the same thing with a video.

The camera is not making a decision. The human made the decision to set the camera up to take pictures when motion activated.

Yeah, I think in the general case there's going to be a significant amount of selection and arrangement of the works from the AI, though I guess that even then none of the underlying images (or such) of the AI get protection.

I wonder if they know about the "inpainting" technique where the human generates an image, erases parts of it, then adds another image and has the AI fill in the blanks and make a new image based on the resulting image?

I think that'd be harder to disentangle the way they do right now to say these parts are copyrightable because the human did them and those parts are not because the AI did them since you can't really separate the inputs at that point.

There was a case last year where a person sued a content creator on YouTube for distributing parts of their accidental livestream. [1] The argument for fair use was that there was no creative input, so fair use. Though, I really do not know, as I think images and videos can be copyrighted exactly for the reason in your comment.

[1] https://www.youtube.com/watch?v=Uk1Tzqc5vk4

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