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Comment by jahewson | Hacker News Reader

Yeah this is excessive in the extreme. Wave goodbye to your copyright if you upload images to this service.

The other thing is that they want you to pay to use the generated images commercially - but (as far as we know) purely AI generated images are not subject to copyright, so such licensing restrictions can’t exist.

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The images themselves may not be subject to copyright, but you can still enter into a contract that says you won’t use generated images without paying for them.

You can’t because copyright law supersedes contract law and copyright law states that such rights are exclusive - thus contract law cannot be used to usurp or invent a copying restriction. Licensing is the exclusive right of the copyright owner and when no copyright exists there can be no license (or de facto equivalent).

It’s not a copyright restriction. It’s a restriction on using the service.

It’s not though, it’s a restriction on using the material produced by the service. Any contract terms regarding such are superseded by copyright law - the only rights belonging to the owner are those granted by copyright law and the only restrictions that may be placed are those that copyright law permits.

No, the rights are not superseded by copyright law. Why do you think that? Your agreement with the service provider is just like any other contractual agreement. Should you use one of the generated images (that you generated and used outside the terms of your agreement), you would not be sued for copyright infringement. You would be sued for breach of contract.

What you're saying is akin to signing an NDA, violating it, and then saying your First Amendment right supersedes the NDA. It doesn't.

It’s been federal law since 1976 that copyright “preempts” any other laws granting overlapping claims. This includes contracts, which fall under state law. Now, strictly speaking the courts are divided on how to treat the specifics of these issues with respect to EULAs, but the Genius vs Google case should leave one weary:

https://patentlyo.com/patent/2022/08/copyright-preempting-co...

> purely AI generated images are not subject to copyright, so such licensing restrictions can’t exist.

This doesn't feel right, similar to how it doesn't feel right that the companies are hoovering up copyrighted data. The company has invested in creating a cool product here, and it's reasonable for them to be able to license that work when used commercially.

They created a product and they definitely have copyright over that product.

However, what the product is creating, the output, is an AI generated Image... Which because it wasn't human authored, is automatically put into the public domain the moment it's created.

The product is copyrighted, the output is not.

I really don't think this has been legally established, especially not in the case that AI is being used in conjunction with a copyright base image that it uses as a scaffold. It's incredibly hard to see the result as anything but a derived work of the original and being copyright by the author of the original in a similar way to applying a digital filter would.

The courts will sort out the boundaries of copyright here, but I'll eat my shorts if it's as extreme as the "all things that come out of AI are public domain" crowd thinks.

The gist of guidance from the US Copyright Office is that it's relative to what was put in.

If your input was a six word prompt of everyday langhage and the widely available magic box decompressed that into a cool picture, nobody produced anything copyrightable. And most of us wouldn't want that to be different. You'd just have squatters racing to claim copyright over every Midjourney prompt they can generate.

But if someone put what's clearly a demonstrably significant amount of commercial direction or artisanal effort into producing a original work while using generative tools, that direction/effort is what earns your copyright. The same would likely apply when using the tech to further "work" some already-copyrighted material of your own.

You're right that most of this stuff hasn't been tested by the courts when the tools are called "AI", but many of the underlying questions have decades and decades of precedent behind them (music sampling, collage and assemblage in visual art, monkeys taking snapshots, etc). Regulators do and lawyers will be making their cases about AI copyright in reference to those earlier, analogous, cases.

Yes, the “copyright base image that it uses as a scaffold” case is special and I agree that we’ve not seen the conclusion there yet. Though, it must be said that I’d expect to the extent that such copyright exists it’s going to belong to the original image author, not the model creator/user.

I actually agree that it feels weird but you can’t license something you don’t own and copyright law supersedes contract law.

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