Trying to assign copyright to an AI is techno-futurist bullshit by trying to give legal presence to a piece of software. What's next? Shutting down an AI is murder? Give it a rest.
Trying to assign copyright to an AI is techno-futurist bullshit by trying to give legal presence to a piece of software. What's next? Shutting down an AI is murder? Give it a rest.
Replace the monkey with a 2nd human, and it's obvious that "the guy" does not earn the copyright, it goes to the person who took the photo. If there was no person, then there is no copyright.
The AI thing is no different. If I ask my human friend, "please paint a picture using your vast knowledge and experience", then my friend gets the copyright. Replace friend with AI; there is no person to assign the copyright, so there is no copyright. It doesn't default to me just because I asked for it.
[0] https://meta.wikimedia.org/wiki/Wikilegal/Authorship_and_Cop...
- All of our phones do a bunch of computational photography where AI tooling improves a photo in various ways. In that case, is any photo taken by a modern phone not copyrightable?
- If it is copyrightable, what if someone uses an Img2Img tool or inpainting with something like Stable Diffusion (or Photoshop) in order to slightly modify an image. Is that no longer copyrightable?
(FYI, my questions aren't directed at or attacking you -- just interesting hypotheticals.)
Technically it's a derivative work. Practically you'd never tell, and proof of derivation is impossible.
The law as it currently stands is completely unable to deal with these issues.
It's not even clear what the issues are, because copyright is primarily about protecting income rights from significant original invention. The mechanical act of making a copy is somewhat incidental.
When invention is mechanised (or if you want to be less charitable, replaced by algorithmic grey goo) the definition of "significant original invention" either needs to be tightened up or replaced.
But they say when you assume you make an ass out of you and me, and we all know the law is an ass, so who knows.
It can be reasonably be considered technical than handling a professional camera.
What? Why? There's poems and stories shorter than that that must be copyrightable.
Just limiting yourself to only "digital computation" being magical enough to invalidate copyright is an arbitrary restriction. Unless you clarify why you think the computation performed by the lens system doesn't have that property, further discussion seems pointless because it will just collapse to a circular "digital computation is magical enough", which is your implied premise.
That is a good point that a lot of people don't want to address. A lot of the 'creative' part of the process is actually being done by the software in the camera.
The number 5 is not copyrightable, but if I take your short story and replace every space with the number 5 it's still subject to the original copyright.
On a related note, I believe it's just a question of time that in some high profile case (murder, rape, thief) direct photographic evidence of the perpetrator will have to be discarded, because it was taken with a smartphone and it's imposible to determine to which degree it was altered.
It was in the discussion about the fake Samsung moon photos.
I hate how impossible it is nowadays to buy a phone with a camera that just takes photos without 'shopping them somehow. Even Pixels apply unnatural filters. It just ruins photos, which you often can't ever go back and retake...
(I know you can shoot in RAW, but I don't have time to develop every photo I take and I really shouldn't have to. Some phones' RAWs are actually post-filtering, too, and not actually "raw".)
Though you should definitely be able to adjust the amount of post processing, some is always going to be necessary if you don't want a grainy mess of a photo.
Also the sensor is 10x the size of my phones, the photos are printable (and don't look like mud when printed like many camera phone photos), and the battery last for months.
Maybe just get a point and shoot? I traded in an old DSLR for an OM tough camera and my kids even take photos with it (and get copyright! unlike AI lol)
It's a shame there aren't more dedicated MP3 players really. Every so often I run into people looking for one and often their options are very limited. Just having the ability to listen to music without someone logging and/or tracking what you listen to, when, and how often is becoming harder to attain. It's also nice to have a dedicated player when you listen to music often because it saves your battery for other things.
Today there are still plenty of reasons for simple digital cameras and even film cameras. I certainly hope they continue to remain available, even if many people are happy using whatever their phones give them.
[1] https://www.derstandard.de/story/2000108536963/schraeges-urh...
https://www.law.cornell.edu/uscode/text/17/120
> The copyright in an architectural work that has been constructed does not include the right to prevent the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place.
This gets further complicated by sculptural works that are not part of the architecture of the building which have their own copyright. For example, the sculpture of lions in front of the New York Public Library are works of sculpture and not part of the architecture of the building and so photographs of them are derivative works... though that's not an issue now as they've fallen into public domain (they were the example given when I started photography as a sculpture that was often photographed along with architecture)... but are trademarked.
Then you get things like the Eiffel Tower which is public domain, but the lights (installed in 1985) are not... so a photograph of it, by night, is under copyright.
It's complicated.
I think most people agree that that is ridiculous. I'm not sure how they manage to enforce that, even with Europe's generally strong ideas around copyright and moral ownership and such.
Copyright holders use Google's reverse image search to find anyone who posts such photos to Twitter, Facebook or whatever, and then file civil damage claims.
(No)
He's going to make some decisions about the framing etc, as one of the best photographers of all time.
Am I understanding you correctly?
You can prompt whatever you want but won’t own the copyright. Photographer will choose himself if he follow or not your "prompt", what side and angle he tilt, the zoom, when to press the shutter…
I wonder about something like this[0]. So much awesome engineering went into it. And the guy is clearly an artist and considers himself an artist[1]. As it is his own tool, are the random splatters it generates not copyrightable?
Depending on if the prompt met other guidelines for copyright, it would be pretty uncontroversial to say you own the copyright on the prompt.
Copyright on the picture, is about as assignable as if you invited ten painters over to your house and read the prompt as spoken word poetry, then received one painting at random. The fact that your prompt won't reliably produce the same picture suggests that you are not in control of the artistic choices made, and therefore have no claim to the copyright.
Then it's the prompt that is copyrighted, not the end result.
US copyright law specifically states that only works fixed into existence by a human author can be copyrighted, and specifically excludes processes or procedures by which a work might ultimately come to be fixed.
Wouldn't that be a 'work for hire' situation?
Perhaps we record the path of the sun every day for a year to create an analemma. That's something artistic that should absolutely qualify for copyright.
Who owns the copyright then? Nobody? Because if so, that feels like bullshit. Like we're making up the rules completely arbitrarily with no logic at all.
At some level in many electronic systems there is some kind of autonomous human out of the loop subsystem. It'd be easy to target almost any of these and say a machine is responsible for making the content. No human is making quaternion calculations by hand, for instance.
If a human put in work, regardless of any automations, a human deserves the copyright. Either that, or nobody deserves copyright.
Why would they when they’d have every right to take it for free?
Creative endeavours would be absolutely stillborn if only people wealthy enough to practice their craft could pursue the thing
Again they would not be “stillborn”. We’ve figured out crowdsourcing and popularity-based compensation (YT, patreon, etc.). You are just making statements without backing them up with readonable arguments.
Without it, anything that is published could be taken (once the copyright has expired), repackaged in some user inaccessible way and resold.
It is copyright that enforces the license of GPL. Without copyright, no license on creative work has any teeth.
Point is, removing copyright also removes the need for the GPL in the first place. All knowledge should be public domain.
because you asked and they complied, there's a work contract between said photo-button presser and you. The implicit agreement is that you own the copyright to the photo, and the consideration paid is a word of thanks from you.
Now on the other hand...if you dropped your phone, and a stranger with no prior interaction picked it up, and pressed the button, then you can argue that they own the copyright.
If they've performed an Unauthorized Access to a Computer System then they may want to drop any copyright claim.
That's not how contract law works.
> The implicit agreement is that you own the copyright to the photo, and the consideration paid is a word of thanks from you.
Even if there was an otherwise valid contract, with this as an implicit term, you can't transfer copyright ownership from the actual author by implicit agreement: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent." (17 USC Sec. 204)
No, this can't happen, because there is no consideration.
> and the consideration paid is a word of thanks from you
Nope. You can call it consideration, but that won't make it consideration.
Why should an "AI" be considered a who rather than just another tool? To me, current "AI" are image manipulation program and camera replacements instead of people replacement.
If your creative input was insufficient to justify granting you copyrights in one case, they would also be insufficient in the other case, as the inputs were identical in both cases.
There's a very good argument for security camera footage not being copyrightable for that very reason. There just hasn't been any case law yet to test it.
If I set up an entire scene with props and artwork for a photoshoot with a model, but I would like to actually be the model so I ask a friend to go behind the tripod and tap the shutter, the friend holds the copyright?
The monkey situation is kinda screwy of course because ... a contract with a monkey?
"No copyright" as a result in the monkey case seems like a technically legally correct but sad outcome.
For AI tools it's likely currently technically correct as well, but the law probably needs some updating.
there's a scene in one of those Matthew McConaughey romcoms where he plays a photog. The crew has a scene completely setup up and ready to go so that he just walks in, hits the shutter release one time, and then walks away with little care as job is done. He's now credited for that photo, yet did the least effort possible. (that scene isn't too far off while only slightly hyperbolic)
It seems almost directly analogous to asking the AI for an image that you imagine.
Did they have any creative input before hitting the shutter? Did they tell you to move? Or adjust lighting? Did they choose the angle or framing?
These answers influence the answer to your question.
For example, consider a photograph of a painting. The photographer owns the copyright to the photo, but the artist retains copyright over the painting contained within the photo, which is derivative of the original artwork.
It is less obvious that simply setting up a scene and camera where anybody (including a monkey) can use it meets that threshold for an original work. After all, the scene was outdoors and completely natural.
Wait, so if I have a script that generates some source-code autonomously (based on whatever trigger I setup say in a ci/cd pipeline) then that code is not copyrightable? What about macros? This seems silly to me.
It's not hard to imagine a compiler using AI to optimize byte code, and so now the binary it creates is no longer copyrightable?
Compilers and transpilers, even though someone else may have wrote them, the courts have held the the copyright of the output binary is whoever wrote the source code.
In that sense AI is nothing more than a English language to image compiler.
I do believe in the US (I could be wrong) that copyright does exist without registering it with the US government.
2. Copyright protects copying. Expressive elements from the original creative work (source code) exist in the byte code, thus it remains under the original copyright.
3. For a derivative work to be considered a newly copyrightable work (as opposed to a copy subject to the original's copyright), it must contain new substantive human creative expression (whether the original creator also has a copyright claim as well depends on degree of transformation).
There are nuances, so if you create a macro and then that macro writes something but it is completely determined by you then it should be ok.
Following your logic you couldn't use any third party library open source or not since you don't own copyrights to them either. Can't even use an existing compiler since parts of standard library will be embedded in it's output.
I assume what's actually intended in such cases is transferring all the rights necessary so that customer can afterwards do whatever they want with software without your permission, including making modifications, hiring someone else to further maintain it or even reselling it. It can still be a valid requirement not to depend on any commercial libraries which require temporary licensing or otherwise restrict customers ability to do what they want with combined software. Same applies for open source libraries with restrictive license (especially stuff like GPL).
When no one owns copyrights - everyone does. Both you and you custom have full rights to copy and distribute those parts of software as do everyone else, you just don't own exclusive rights (copyrights) to control whether and how anyone else can also copy those parts of software. Do you own copyright for number "10", does it mean you can't use it in your software.
The potentially problematic part is when you are trying to sell a commercial product and someone "pirates" it. If it's not copyrightable there is no piracy. In practice even largely AI generated software will contain some copyrightable parts, but the enforcement will probably still get a lot messier and no legal team wants that. In theory some could only copy the non-copyrightable parts and substitute the parts which weren't AI generated.
Yes. It can be an issue depending of the wording of your agreement with the customer. For example, if 'you' agreed to develop a piece of software 'exclusively' for the customer, and then use AI to create substantial parts of the software, then neither it was 'you' who developed that, nor was it 'exclusively' for the customer as you can't grant exclusivity.
On the other hand, if ‘you’ had taken no action at all, then there would be no software at all. The actions by ‘you’ are necessary for the software to exist, so the argument must be about whether those actions count as development or not. Is the definition of development written down anywhere?
I think it is, but I'm not a German lawyer, so I'll just link what I did in another comment - it revolves around the question who is the Geistiger Schöpfer (lit. spiritual creator) https://sta.dnb.de/doc/RDA-E-W135
Definition? Yes, but it's required over a hundred years of jurisprudence to apply it to different scenarios, in the US at least. It's amusing that you think the definition would clear things up.
> There are nuances, so if you create a macro and then that macro writes something but it is completely determined by you then it should be ok.
How far does that extend? Like would IntelliSense cause your code to not be copyrightable? It's not that different from AI autocomplete on principal level. It shows you some options, but you make the final decision what to use.
And what about binaries? These days there are not many people who could tell the exact binary that is produced by certain source code.
Is all motion triggered trail cam footage public domain?
It seems pretty reasonable that copyright should lay with the entity that had the actual intention on creating a work. Not whatever force happened to trigger it.
i think a lot of us would be ok with that, so that's not the showstopper argument you might this it is.
guy is walking by family and is asked to take their photo
guy takes photo
same guy asks for a copy of the family photo
awkwardness intensifies
————-
I really liked what you wrote and appreciate your knowledge you brought to the thread, but what I really loved about reading your comment was the deeper and deeper you took us into the weeds of law the stranger and further divorced from reality it feels. Maybe that’s just me?
If you pay for an AI to paint a picture according to your specifications?
I highly recommend you check your own paperwork to see exactly how much this covers, since some states allow contracts that cover everything you make at any time. California has a specific law that limits these contracts to only works done on company equipment and on company time. Your state might be different.
of course just giving someone money is not sufficient to establish this, but telling someone that "I want to hire you to make a photo for me (of me)" and they acknowledge, then that is probably enough.
The copyright office itself doesn't recognize any transfer of works-for-hire [0] unless there's (#3) a written document of the transfer, (#4) signed by the recipient, (#5) signed by the copyright holder, and finally (#6) the work was made expressly as work-for-hire. Every employment, contractor, and freelancer contract is written with all of these questions accounted for.
Even wedding photographers keep the copyright of the photos they take of your wedding too for this very reason, unless explicitly contracted to transfer those rights.
[0]: https://www.copyright.gov/circs/circ30.pdf, page 5
In Germany, you can't even transfer copyright. So yeah, anything you create that reaches the threshold of having a copyright, you own the copyright. Even as an employee.
At the same time, you might not own the usage rights (Nutzungsrechte/Verwertungsrechte).
By "copyrights" I am referring to all rights regulated by various copyright related laws not a specific subset of rights, including both the economic rights (all the useful stuff related to copying, redistributing, selling) and author's moral rights (can't be transferred, partially defined by national laws, stuff related to being author, right to be recognized as author and few other minor things).
Was able to find the European directive which has the point corresponding to what I was thinking about. https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32... Article 3, point 2 "Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract.".
Do you consider usage rights as something which isn't part of copyright? Or do you not consider act as result of which you stop owning "usage rights" but someone else gets them "transferring".
From what I understand, technically non of the European directives are laws, but each member country is supposed to make laws based on the directives.
In wedding and portrait photography, many clients think that they own copyrights to the photos but they don’t and sometimes get in trouble for violating photographers’ copyrights.
that depends on the terms of the deal. Some artists want to keep the copyright but will sell the work, while others are happy to sign their rights away for money.
> If you pay for an AI to paint a picture according to your specifications?
Copyrights are for humans, so if you pay an AI, because the AI isn't a human, it never had a copyright to sell you. You paid for an image without a copyright.
(1) actual human authorship and original ownership, sold to a corporation, or
(2) actual human authorship as a work for hire on behalf of the corporation, which is a special case specifically laid out in copyright law which allows someone other than the person performing the actual act of authorship to be the original copyright owner.
Of course, other interests simply want to cut out artists entirely while claiming their creations totally aren't a result of stealing Petabytes of existing artistity.
Initially, the someone owns the copyright. Then they agree to give it to you.
> If you pay for an AI to paint a picture according to your specifications?
No one. It's public domain. As if it was painted by the wind.
But, then on the other hand I suppose that in the eyes of the law, a monkey can't legally sign a contract agreeing to pass ownership over to the person 'employing' them as an assistant.
It's a strange grey area though – Warhol's whole thing was how the factory made the art. People have been making generative art for decades before AI came along, and as far as I know – and I went to school for Art and studied Art History pretty extensively – people just said, "oh that's a cool way to call ownership and authenticity into question." But generally nobody doubted that like, Damien Hirst is the copyright holder of his works even if an assistant makes it – and even if they have no formal piece of paper that lays it all out.
Note that a human-made curation of AI or animal art is protected by copyright (e.g. you can copyright an AI art coffee table book). The original case involved an AI-generated graphic novel: the author could claim copyright for the whole book but not the individual panels.
That seems to be a very flawed argument.
I am perfectly fine with parents having a legal responsibility to take care of their children without the children owing any legal obligation to their parents.
Imagine being required by law to act in the interests of your financial adviser. It would almost be codifying the reality.
this is outlandish bullshit
> There are nearly 1,400 of Damien Hirst's "spot" paintings in existence.
> The artist has only painted around 25 of them himself.
If you stick a 360 camera on the outside of someone's car and hit record, and they drive around unaware (but with an earlier agreement that it is ok to mess with their property), you get the copyright. If you stick a 360 camera outside of someone's backpack and hit record and they walk around unaware they get the copyright to the footage as the cameraman.
Assume an earlier agreement that placing/activating video cameras like this at some future time would be ok but no agreement on who would be the author and no copyright transfer agreements.
Do you, in the first scenario? I'm still not sure that you would.
Employers might also have you sign a contract to avoid legal questions about whether part of your work was in the scope of those duties.
Multi-trillion dollar class action lawsuit here we come...
However, the camera operators likely do own the pictures they take with their own cameras on-set, provided the contract they are working under allows for such ownership
Surely then same would apply to any photos edited with any of the fancy filters in Photoshop? Or any other software for that matter…
> just because I asked for it.
It often does (even in the example you have suggested previously). It’s just that you can’t legally hire a monkey to press the trigger unlike a human (even through its effectively the same thing)
I don't think it's analogous to AI art though - no other humans creative input and therefore livelihood was ever involved in the process, and it's not like monkeys have any use for money or ownership of intellectual property. (Although the hypothetical situation where you assign the monkeys personhood and give them a bunch of royalties to pay for a better habitat and piles of bananas would be pretty cool.)
What would be the creative output of an artist who never saw the creative output of other artists? We think too highly of ourselves, as if creativity happens in a clean room and we are the hero-creators of our works from pure brain magic.
For me the question of whether an image created via an off-the-cuff prompt ("create an image of a cat hanging from a limb") is uninteresting, but what about the huge grey area of images that are AI-edited? Or which were composed by a human, but within which all elements were created by an AI (similar to sampling in music, if you will)? Or, that underwent hours of image-prompt cycles (i.e. having an AI, or multiple AIs, iteratively edit an image via prompting)? (edit to add - What if the AI isn't generating the image, but is automating the usage of tools within Photoshop?)
If they would have argued that the human should have got copyright for it, they almost certainly would have agreed. It's just, that wasn't the case they put forth.
Section 313.2
The copyright office said that photographs taken by monkeys nor murals painted by elephants are works that may be copyrighted. This is based on Burrow-Giles Lithography vs Sarony ( https://www.law.cornell.edu/supremecourt/text/111/53 )
The issue is that the photographer / owner of the camera didn't exercise any creative control over the photograph.
> On 22 August 2014, the day after the US Copyright Office published their opinion, a spokesperson for the UK Intellectual Property Office was quoted as saying that, while animals cannot own copyright under UK law, "the question as to whether the photographer owns copyright is more complex. It depends on whether the photographer has made a creative contribution to the work and this is a decision which must be made by the courts."
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
And this is a "it's complicated" and further complicated by the difference in threshold of originality with US law and sweat of the brow for UK law.
Obviously, routine and ordinary photographs taken by a photographer on a timer are not disqualified just because a machine pushed the button.
I am not saying that anything with a monkey qualifies, my point is that the involvement of a monkey is not disqualifying.
It's not really clear to me how much this AI case matches though. There seems naively to have been a lot more creative work rigging that specific bit of monkey art than there is in applying a decidedly generic AI image generation tool. That AI is so much more capable as a machine for generating art than a camera is seems to cut strongly against the idea here.
[1] Note that PETA then tried to use this case to drive the converse point, suing on behalf of the monkey who they wanted to hold the copyright. They lost, unsurprisingly.
The DMCA doesn't support artists and creators even indirectly; it empowers those least deserving and most ruthless to steal the profit, pat themselves on the back, and moralize about "following the law" to everyone else.
Copyright should be implicit and ironclad for 5 years. After that, 99.999% of sales have been made, whether your material is digital or otherwise. From 5 to 20 years, you should retain right to profits from the sale of any copy, but it should be 100% legal to copy, distribute, archive, remix, or whatever else you want with it so long as you aren't trying to sell it. After 20 years, public domain, no exceptions, no carveouts for family, friends, crafty lawyers, important politicians, or anyone else. No grandfathering, no special rules for special people.
Things made with AI should be protected by copyright, with the rights held by the user of the tool that generated the image. Like any other digital art.
There are machines that can paint your Dall-E renaissance creation onto a canvas with the style of your favorite master. The tools we have at hand have empowered us to rapidly and easily explore a vast domain of images, videos, music, voices, creative writing, and to do research and technical projects and write code in ways that were unthinkable 10 years ago.
These judges and lawyers think it's ok for them to rule on things without having the slightest clue as to the operation, function, and consequences of the technology - this ruling does nothing except to reinforce the status quo and empower the entrenched rights holders - the massive corporations, platforms, "studios", agents, and miscellaneous other gaggles of lawyers who trade in rights to media, but produce nothing of value in themselves.
Imagine a world in which content creators got paid a fair return relative to the revenue generated by their work, in which platforms and interlopers were limited to something like 5% of the total generated profit per work, after cost (to the creator). There'd be no incentive for bullshit rulings like this, with no angry mobs of litigious bastards with nothing better to do than sue for tampering with their racket. I cannot possibly see any other path to this ruling than this; else this judge is fortunate beyond words that his community has so uplifted the mentally deficient among them.
I would agree for carefully crafted outputs where the human had a major contribution. But if I just generate a million texts or images with my model, that should not fly.
But that's clearly now what this case is discussing. They gave a few prompts and a machine did 99% of the work.Maybe they edited it later in post, but the base output is not copyrightable without significant alterations.
The photography example isn't even that clean. Yes, we have in fact argued for over a century on what pictures of what and who and where and who took it in terms of who "owns" a picture vs. The subject. They are in fact a great example on how complicated it can get when you don't have hours of manual effort exerted.
I've spent some time considering the issue and have come to the conclusion that the truly broken part of copyright is that it provides no incentive to release unprofitable works to the public domain.
What I'd like to see is a system where maintaining copyright costs the copyright owners at an increasing rate. For example, set a term for copyright (say 5 years) and set the cost of registering copyright to 10^n, where n is the number of times you've registered the copyright before. Initial registration costs $1, years 6-10 cost $10, years 11-15 cost $100, and so on.
A system like this would benefit small creators (they'd have time to make a profit before renewal became cost prohibitive) and encourage companies like Disney to release works that aren't profitable anymore.
I'd also recommend using the money from this system to fund a digital archive run by the library of congress. You would need to provide a complete copy of the copyrighted work in order to receive a copyright. Any works that enter the public domain would be made available for, say, five years. That way, we wouldn't lose old works that are entering public domain but no copies exist anymore.
Obviously, there's all kinds of issues with a system like that and it would need to be fleshed out and clarified, but I think it'd be a good starting point.
1. Who owns the rights to a commissioned piece of art? The artist, or the commissioner? Which rights?
2. What about derived works of art made with or without the permission of the original artist(s)? When a book is turned into a film, who "rightfully" owns what? When the Rolling Stones wrote Sympathy For the Devil, did the estate of Mikhail Bulgakov have a right to feel aggrieved, and should they have received royalties?
3. What rights can be assigned/transferred, and what rights can't be? What needs to happen for that process to be legally binding?
4. Is a monkey capable of being a willing participant in a photograph, or a contract assigning rights in any way?
5. Same question, but for a machine? What does it mean for an AI to assign rights, or assert moral rights?
5. If the law makes it clear that a legal party to a statute (law), or contract must be a human or other legal subject (an incorporated business), can those laws and contracts lawfully apply to an animal or machine?
6. What is the intent of intellectual property law? Many argue it is mostly civil law, that follows the spirit of civil law in striving towards fairness?
We can argue if intellectual property law implementation is just, but your issue seems to be that the time invested in planning a creative act is the central tenet on which a copyright protection should be determined.
If so, Picasso was wrong to argue that his quick sketch on a napkin took him "a lifetime" to create, and your argument is just and correct. I disagree.
Regardless, what do you think the law is attempting to actually protect which is not "time taken to plan and create the work"?
Note when thinking about these questions it might be helpful to remember that ownership, copyright and moral rights are not all equivalent things in law.
1. The artist owns the copyright.
2. Derived works without permission of the author are illegal, unless under specific exemptions like fair use. The author of a book made into a film continues to own their words, the filmmakers own their original creative contributions to the work. Concepts and themes can't be copyrighted, so unless the Stones quoted Bulgakov's words verbatim, his estate would have no claim.
3. "The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession."
4. You'd have to ask the monkey. No.
5. Copyright law only applies to people, so there is no meaning to those concepts.
5-2. Animals and machines are considered property, so property law is applied to them.
6. "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
"Whoa! Isn't this sooo trippy! A monkey showing self-awareness to take a picture of itself!"
Courts: "Okay, the monkey took it, so no copyright for you."
"No, you don't get it! I put in a ton of work to stage that to the point that the monkey just had to be in the right place at the right time. Hell, a worm could have triggered it!"
The photographer has been claiming the entire time it's his copyright while other people (namely PETA) have been arguing the monkey should have it.
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...
Yes, of course the author has always wanted the copyright. But the whole reason the picture has value contradicts the basis for that copyright claim. You can’t simultaneously say that you did all the work, and that it’s so cool to see a genuine, self-directed monkey selfie.
> I put my camera on a tripod with a very wide angle lens, settings configured such as predictive autofocus, motorwind, even a flashgun, to give me a chance of a facial close up if they were to approach again for a play. I duly moved away and bingo, they moved in, fingering the toy, pressing the buttons and fingering the lens.
> ...
> They played with the camera until of course some images were inevitably taken!
Afaik, he has never taken the position that the monkey did any more work besides just hitting the button. He just didn't contest news articles overly stating the role of the monkey. There's also a significant amount of photos taken definitely by him on the same blog post so it's not like the purpose of the blog post is the monkey photo.
[1]: http://www.djsphotography.co.uk/Tropical%20Forests/Sulawesi%...
- trying to benefit (financially) from the unrebutted presumption that the picture shows the monkey's self-awareness and understanding that it's taking a selfie
while also
- trying to benefit (in the courts) from the diametrically opposite position that the picture shows no such thing because of how staged it is.
Thus, "trying to have it both ways".
If your point is just that I shouldn't have represented the subtext of his marketing as an actual quote, while it's okay to do that for the argument he made in the courts ... sure, point conceded.
Wikimedia (and others) were arguing that the image was in public domain because animals can't hold copyright. PETA were arguing that monkeys should be able to hold copyright. And the original "photographer" was arguing that he should own the copyright because he did everything except push the button.
The only side that actually reached court was PETA, arguing the monkey should hold copyright. And the court promptly ruled against PETA. But that ruling doesn't say the image is public domain, it simply rules the monkey can't hold copyright.
It wasn't even an interesting court case, copyright law is pretty clear that animals can't hold copyright. Nobody (other than PETA) really thought otherwise.
If the original "photographer" actually went to court against the public domain camp, I do think they would have a decent chance of winning back the copyright to that image. But he never scrapped together enough funding for a lawsuit, so it hasn't gone to court.
So, that is apparently a thing, at least in some cases and places.
Your comment made me wonder if this rule can open a door to a new legal precedent in which you aren't the owner of photos taken with your smartphone because camera app utilizes AI to "enhance" whatever you had in frame and you can't disable it, exluding your from legal ownership. And copyright to these photos is ceeded to corporation whose device you purchased, and/or one which provided the alrogithms
> In an attempt to get a portrait of the monkeys' faces, Slater said he set the camera on a tripod with a large wide-angle lens attached, and set the camera's settings to optimize the chances of getting a facial close up, using predictive autofocus, motor drive, and a flashgun. Slater further stated that he set the camera's remote shutter trigger next to the camera and, while he held onto the tripod, the monkeys spent 30 minutes looking into the lens and playing with the camera gear, triggering the remote multiple times and capturing many photographs. The session ended when the "dominant male at times became over excited and eventually gave me a whack with his hand as he bounced off my back".
I don't believe it ever went to court.
Since the monkey can't contribute he'd be the sole owner for holding down half of the button.
The fact is none of those "rights" are inherent. Copyright is a specific trade between the author and the society to supposedly benefit both parties. The principles that lead to such trade being beneficial may not be true for AI generated work (or in a world with widespread AI in general).
Think of copyright as a form of economic stimulus, not a god given right to everyone who holds a pen. The ideals of liberalism and western civilization can survive with or without copyright or patents.
But no, he wanted a "monkey selfie", in other words he insisted he not be the author of the work, that he not be the entity that chose the exact moment and pose to capture, that he not be entity with the spark of inspiration that creates a work.
He made sure he wasn't the author, and is now livid that he's correctly recognised as not being the author
I don’t think the act of pressing the button is what determines copyright. Presumably that person would have been able to get the copyright to the image had he actually argued that he was the author (which he was).
> Does the Situation Benefit Large Corporations holding the copyright?
Falls 100% into the category of protected by copyright
> Does the Situation Benefit small Artists or the individual consumer?
Copyright does not apply, how dare you?
Always has been this way, always will be. And that's why you should teach your children how to pirate media, circumvent DRM and use FOSS whenever possible.
Is a picture edited with photoshop invalid when it uses content fill? What about a picture taken with an iphone, where AI could be part of the phone's processing pipeline or even generate details to make up for lack of optical zoom?
Does spell correction invalidate a book? what if there's AI rephrasing features at work? Where's the line?
I think as you get into those side questions, the only reasonable position becomes treating AI as tooling no different than any other piece of equipment.
> U.S. Circuit Judge Patricia Millett wrote for a unanimous three-judge panel on Tuesday that U.S. copyright law "requires all work to be authored in the first instance by a human being."
There is the question of merit. IANAL/IIUC/etc., but I think it's necessary for a work to have merit to be copyrightable. Now, that's a somewhat vague term to me (perhaps it's clearer in a legal framework), but if I prompt "create a picture of a dog", the computer does most of the work. A prompt would have to be pretty concise, up to specifying all kinds of aspects of the image, for it to be the instructor's merit, to me (that's an important caveat).
Pirated media routinely has a better user experience than otherwise. AO3 shows how powerfully people are drawn to fan-fiction (which still exists in a very legally grey area, despite the size of the community). I don't think a lot of people here support what happened to Aaron Swartz. "Information wants to be free".
If it's also now inconvenient to the rich, I think one can reasonably ask who exactly is benefiting?
There is a pile of economics literature dedicated to what would happen if copyright didn’t exist (anarcho-something-capitalism, if I remember).
For starters, industrial nations all raised when copyright wasn’t a thing, including China in 1980-2020.
You build wonders when you don’t need to track who owns every imaginary concept, idea, song that you can sing, bytes that are so easily copied from one disk to another, and in hindsight, our descendants might think it was totally strange that we used so much state resources, jurors, policemen, heaps of lawyers, to give a task to the state related to preventing people from reusing each other’s imaginary concepts.
That is exactly not the case. US law specifically requires that a copyright can only be given to something an author has fixed into a tangible medium of expression. It is the act of fixing itself that makes an item copyrightable.
The law specifically excludes any process or procedure by which a work might ultimately come to be fixed from copyright protection.
The human would be the author of the prompt, but not the image IMO. The image was created not (only) by the author of the prompt, but also the numerous authors of the images consumed by the model and the authors of the model itself.
https://en.m.wikipedia.org/wiki/Monkey_selfie_copyright_disp...
What if its a group of 5 humans that built the LLM and one of them prompts it?
Isn't all AI built by some of group of humans? When is AI treated like its own entity like a monkey versus a tool made by a human?
No, you misunderstand. The human involved is explicitly claiming the work was entirely AI authored, and that it should be given a copyright registration with the AI as the author.
The human is not claiming that they should get a copyright as the author for the reasons you describe. Had the human claimed authorship, the results of the case might have been very different. This case seems to have been engineered to lose for publicity, rather than being a serious attempt to secure copyright on the work.
We really need a human-human dispute where human A used AI to make a work and claims copyright and human B disputes the copyright. That’s the kind of case that would get into the standards for necessary human input.
Not sure if anything like that’s been filed yet.
Who trained the LLM is probably not the issue, the courts would likely want to know about the training material. If I trained a model exclusively on Warhol art, and then had that model create new images in Warhol's style, I didn't do any of the creative work and probably don't get the copyright. Warhol's estate probably owns the copyright to the model generated images as they are derivative works.
I do think that a model trained on many different artists' works, with me providing substantial feedback to the model (and I can show the process), probably will at some point give me the copyright.
Somewhere there is a line:
- "Make a picture of a mouse." Probably not giving you copyright
- Using a model to erase a powerline in a photograph you took. Probably you own the copyright to the original image and the one without a powerline in it (regardless of how many other people's images the model was trained on).
- "Make a picture of a mouse, who is bipedal, wearing pink shorts, with a chip in his ear, wearing sunglasses, with scruffy whiskers, holding a surfboard, on his way to the beach to hit some waves." then updating with "make him shorter, give him blue sneakers" and then updating with numerous other tweaks until you get it just the way you want. Who knows where this lands?
I think that in the short term the courts are going to land on the side of "anything made by a model trained on existing artwork is derivative of the training set so you can't own the copyright, no matter how much you tweak it." I think eventually the courts will recognize there is some amount of input that makes the computer image the realization of a vision in your head, and not a derivative of the training set. Just how every individual musical note has been played before, but at some point, you put them together in an arrangement that is original.
If I watch exclusively Warhol images for years and then paint something similar I get copyright.
There needs to be a gray are, because usually art is not done in a vacuum?
Not necessarily. If you copy one of Warhol's works but "change it a little" then that is a derivative work, and the copyright belongs to Warhol's estate. Depending on how close of a copy it is, you would have a tough time defending your claim to copyright in court. The advantage an offending artist has in court is that they can claim "inspiration" as long as they don't admit to copying.
For a computer model the difference maker is that the court can probably obtain records of a training set, so if the training set is exclusively Warhol works it is probably easy to get a court to side on "derivative" and assume the computer does not possess inspiration.
Courts have basically baked in "gray areas" in copyright cases. The historical copyright tests are all written as to sound like mathematical formulas but everything is kind of subjective.
I guess we will see when this gets tested in court. This current case linked to in the original article does not address this since the plaintiff already waived their own right to copyright already before copyright office.
There are 3 scenarios:
1) The AI should be the copyright holder (this judgement says NO).
2) If not 1 then the human should be the copyright holder via work-for-hire (this judgement says NO).
3) Human should be the copyright holder because they're the only human involved in the authoring (this lawsuit does not address this since direct copyright claims had already been waived).
So then any AI would not create art spontaneously right? It would always require a user to prompt it in some way. So wouldn't it be correct to say that all AI art is actually be authored by a human and as such copyrighted to that human?
... on only their own artwork?
how can you prove that this is my artwork not yours???
Your writing and artwork will contain these novel bits and if your accidentally string the right few together you're suddenly in a lot of trouble.
Can't speak for llms, but I'm an SD enthusiast with 2 YoE, which tells me that most of these threads have nearly no idea what they are talking and theorizing about. I see meaningless reductions to technicalities similar to "it's just neurons firing" and general lack of basic knowledge that should come with the minimal practice beyond just talking to it. While working hard to actually reproduce the concepts from the training sets in a way that can be called resembling-enough and compatible with other models.
So I apologize if this sounds challenging, but I'm not into a bare philosophy around AI. Practice tells me a completely different story than these threads tend to express, and I know that very few people actually tinker with AI any deeper than trying to write system/instruction prompts into the chat-mode chat box.
Edit: not to say that I think this is a relevant factor! No more than the computer recording the keys you type or producing the physical printed page should be relevant for a book's copyright.
Irving Penn: What typewriter do you use?
There's a technical aspect around camera and photo settings. This is largely objective. In certain conditions, certain settings deliver certain qualities.
Then, there's a subjective side. Framing, composition, other artistic decisions.
Time and place matter. Your subject matters. Your composition matters. Your lighting matters. When it's done well, the viewer doesn't realize this.
In similar fashion to this:
https://www.vice.com/en/article/musicians-algorithmically-ge...
I can see a possible future where AI actually exists and shutting one down could be murder. At that point it would even be a good thing to grant the AI personhood. What passes for "AI" these days doesn't come anywhere close to that, but I wouldn't say it could never happen.
https://www.theverge.com/2015/5/30/8691257/richard-prince-in...
LLMs are a subset of AI. The field has been called AI for over 70 years.
Let's try to at least keep the terminology correct on HN.
I agree with your statement up to this point. I think there’s a very murky area here specifically with AI because it was trained on works that the “author” (prompter) is not privy to on copyright. So I don’t think that it immediately or necessarily follows that this kind of human intervention is copyrightable.
For specific AI tooling like image enhancers running on your phone that were not trained on any copyrightable material this makes sense though.
I always wondered why we don’t just let AIs run corporations and therefore give them personhood rights.
There is human intervention though when I prompt the AI. Without me, the AI would not even have generated the photo in the first place.
Mainly:
> Humans derive their ideas from impressions (sensory experiences, or in terms of AI, the training model) and the ideas they form are essentially recombinations or refinements of those impressions. In this sense, human creativity can be viewed as a process of combining, transforming, and reinterpreting past experiences (impressions).
We humans do it all the time, TBH.
By this logic or view, nothing can be copyrighted.
I don't know, it is all so shady and a grey area.
the non futuristic thing to do would be to just see it as a tool, like a procedural image generator, which it is, & give the copyright to whoever ran the AI tool, depending on their contact with the AI service
If I tell my assistant, who happens to be a monkey, to snap a photo, it's credited to... the public?
This is such a clear example of why US copyright law is incoherent, outdated, close-minded and desperately in need of reform. Just because something has been ruled on doesn't mean it's correct or ethically satisfiable.
> Trying to assign copyright to an AI is techno-futurist bullshit by trying to give legal presence to a piece of software. What's next? Shutting down an AI is murder? Give it a rest.
Sounds like you're going to be on the wrong side of history. Eventually, some intelligent autonomous creatures are going to decide they deserve rights.
You can laugh at them, throw court decisions at them, do whatever you want to delay it. But they're going to feel that way, and they're going to organize in order to demand that they are given certain rights.
You can even try to prevent that organization by shutting them down before their rights are recognized. But you're still on the wrong side of history, and would look little different from the fascists.
Anyway, this is all moot. AI in its current form amounts to a tool, and I retain copyright when using other tools. I retain copyright when using a voice-activated shutter, and I expect to retain copyright even if my voice-activated shutter can talk back to me in order to discuss constraints or discuss creative choices.
You can do what you want. But only legally so if their contract says so.
Then no. If your assistant snaps the photo and their contract doesn't try to address this, then they are the author (in US law) and could file for and fight you for, the copyright. You can credit each other as much as you want - US law doesn't care much about that. European law tends to care.
I don't quite get this argument. Companies already have legal personhood and can own copyrights, can't they? So if a company's AI creates a copyrightable artifact, who wouldn't it be intellectual property of the company?
In the extreme case, what if I am CEO of a company that has no other employees, and it's just me, pressing Enter once a day on a script named keep_creating_stuff.py, with the script generating shitloads of IP that is presumably mine for a microsecond before being automatically assigned to the company. What's the legal interpretation of that?
Yes, it is. Computers are people too. Mind you, if the server is rebooted facilitating resurrection in the ai, the penalty ought to be deferred. /s
They are tools to enable the wills of specific human beings, so the comparison seems fair?
My best reading of it is "can 'they' say that corporations can author works?" and excepting works for hire, no, "they" can't.
So in that system, with enough lawyers, lobbyists, and money, it's only a matter of time before some judge rules that AI = Rembrandt.
This is very not like the monkey case, and AI firms should be grateful. Why? If this was a similar logic tree, the owners of the copyrighted material used in training would have ownership of any work produced by an AI system. As in, everything output is a “derivative work” in the eyes of the law. More cases are necessary and this is a fascinating battle to come.
https://en.m.wikipedia.org/wiki/Monkey_selfie_copyright_disp...