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> then while the original image would be copyrightable the resulting derivative output would not.

Excellent! I'll put the Inheritance Cycle through a synonymiser, and have a copyright-free (if somewhat degraded) version. Take that, Christopher Paolini!

… wait.

What you say might well be correct: the law is often foolish. But I'd imagine the creativity-free derivative work still counts as a derivative work of the original, copyright-eligible work.

Yes it'd be a derivative work owned by Paolini. Paolini would have copyright to the derivative work, to the extent that he has rights over derivative material. However, the prompter would have nothing

If I write a poem and put it into Stable Diffusion, how is what is produced not a derivative work of my poem? We can argue that it's a derivative work of many other things, but that doesn't make it not a derivative work of the poem.

One way it might not be is if Stable Diffusion is seem more like a hash algorithm than a synonymiser. But I don't see why it should, because there's a meaningful correspondence between the input and the output of the system.

If the prompt is copyrightable, then why wouldn't that copyright flow through to the output?

I can't legally pirate Windows just because the source code was run through a compiler. Even though the compiler itself adds no additional creativity, the underlying source code is still a creative work[0], so pirating the binaries still infringes a copyright. Just one that's in a slightly different place than what we're normally used to thinking about.

Just to drive the point home, there's a few other situations in which copyright "flows through" to things not subject to copyright. Back in the days of copyright formalities, if you published before properly registering something, your work would be born into the public domain. And this occasionally happened to serial media - e.g. someone might just forget to register the third season of a TV show. In that particular case[1], seasons one and two are still copyrighted, and because season three is a derivative work of the prior season, nobody but the original owner can actually make any use of season three. The only practical difference is that the company that owns that TV show lost one year of copyright ownership over the third season.

[0] By definitions of law. I honestly think most software shouldn't have been made copyrightable, but once Congress said "software is copyrightable" that put that question to bed.

[1] I don't remember the name of the TV show or the court case, but this IS a thing that happened and this theory IS court tested.

In general if you pay someone to paint a picture they own the copyright and it needs to be assigned back to you even if you give them quite specific instructions. The instructions lacked sufficient control over the outcome to give some form of dual copyright.

Presumably that general rule would also prevent your instructions to DALLE from giving you copyright ownership of the output either. The AI isn’t getting ownership, so it’s either in the public domain or a derivative work from the artists creating the training data.

Right. And furthermore, I don't actually think prompts alone are copyrightable in most cases - I just wanted to propose an argumentum ad absurdum. Certainly, you can't argue creativity when you're also keyword-stuffing your prompts to call up various feature sets that the model just so happens to associate with them.

The output of a compiler (i.e. A translation program) is created via a prompt (the source code). The output object code is very much copyrighted. People keyword stuff their source code all the time (pragmas) in order to influence the generated output. Why does that object code deserve copyright protection except when the compiler is an AI model (i.e. A translation program)? Compilers use genetic algorithms and weights from profiling in order to generate better output. Where does the output stop being capable of copyright protection because it's no longer "creative"?

If a museum can include a small portion of a frame around a public domain painting and claim new copyright as a result - surely any smallest spark or creative influence qualifies, including choosing a single word and choosing the model and time and which output is selected does as well.

The idea of work for hire, and the notion of copyright assignment, applies to people and not machines or processes employed in the creation of a work. Your brush manufacturer would never dare try to claim that their creative selection of fibres and thus their contribution to the unique brush patterns in your painting constitutes a creative contribution to your work. Why is a complex digital model which does the same any different?

Perhaps it is copyright as a whole that is wrong and is nothing to do with AI. This is what we get for creating imaginary property as a means to finance speculative creative endeavours in a capitalist system. So, yeah. Fun times there - once again technology challenges another economic status quo.

Multiple independently created compilers can directly translate source code to unoptimized machine code that works in a completely straightforward fashion based on the definition of the language. There’s a great deal of complexity involved in creating more optimized output, but the goal is to have functionally equivalent programs.

There’s no way to map DALLE prompts into any kind of obvious picture from the input. Even DALLE itself can produce a wide range of outputs from a single input.

There is, the input is the description of the image so produced plus the hidden elements and parameters (randomness, etc) that users often don't see - with these there is a deterministic input to output relationship. The fitness of the model is in how closely the output matches what we expect to see from them given the inputs we give. That's the point of them. Models are compilers. The distinction is really only in the complexity and ambiguity of the language specifications they implement - not in any fundamental aspect of their function. There isn't a single person alive who understands how a non-trivial compiler works in its entirety, just as nobody really knows how LLMs work yet. That's not the point.

That’s not “independently created” you’re suggesting reimplementing the output of a process not from first principles but from the output of the process. I can make a compiler in a programming language without it being a derivative work of any other compiler.

Further, people have programmed in languages before any compilers where created which worked after the compilers where created.

The CPU is a compiler for programs written in the machine instruction set architecture the CPU claims to implement which happens to output real world effects just as a compiler outputs program code. So, no, you can't.

No all CPU’s aren’t a compiler. Words have meanings and you used them incorrectly.

Early CPU’s didn’t compile anything they directly executed the instruction pipeline.

Words have meanings, and the instruction pipeline consists of electrical signals - and those early CPUs were almost all microcoded or had multiphase clocks or some other implementation abstraction which they did not expose to their architectural state... so yes, they were in a very real sense compilers.

Again “Almost” means not every. So no saying all CPU’s are compilers is clearly false from the words you just wrote.

Also, the number of CPU’s manufactured heavily favored very simple designs.

Simply because I didn't state "for all and every" doesn't invalidate my point, nor does it support yours as true - further, "heavily favored" suffers from the same problem. The point is, there's a system which takes as input formatted in a specification (a program) and some transformed output (a set of actions to be taken or another program input for another compiler). So, there you go. If a hot dog on a bun could be considered a sandwich, then a CPU could be considered to be a compiler. shrug disagree all you like.

If you say X is Y, but it’s not true for all X then the statement is false. Ie: “All integers are even.” is false.

As to your point that’s not what CPU’s do though, they have both a set of instructions and a set of IO with the outside world. A compiler always results in the same output from a given set of instructions, but with CPU’s you can run the same code and get wildly different output due to that IO.

The only way you can call a CPU a compiler is as a subset of its capabilities. If they they have internal microcodes where a given instruction gets translated into a different internal representation, but that’s not the end it also executes those microcodes.

> The photo you take involved choices of composition and timing and equipment choice.

And the AI image involved choices of prompt and model, and subsequent selection from among several generated images.

I recognize that what you said here:

> Your prompt for the AI image generation is copyrightable.

> The output is not.

... probably represents the state of the law at the moment (with meaningful amounts of uncertainty), but I don't think there's a principled difference based on the amount or nature of creativity involved. IMO the equivalent would be "you own the specification of (position, equipment, relevant world state) but not the photo" which obviously doesn't do anything we want for photography. And I guess that's a part of my point. We should pick the policy we want to make sure we capture the incentives we want. Maybe it is best that AI assisted art (past some point?) not be copyrightable. But I don't think basing the distinction on the amount or nature or... propagation (I guess?) of creativity makes any sense in distinguishing flippant and bullshit photographs (at least a third of my photos, although I would hesitate to apply the labels to any particular photo by someone else) from prompt-driven generative works.