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Comment by jedberg | Hacker News Reader

I'm not sure how this actually matters. Knowing this ruling exists, why would anyone ever claim an AI created their art without human assistance? Even if the AI created the art just from the prompt, the human still made the prompt.

Even if the prompt was "make art".

I just don't understand how you could ever have AI art without human intervention. Is there a legal definition of "human intervention" that has some minimum amount of work?

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If I prompt you to draw me a bird, I can’t claim copyright on the bird you draw. (At least not with a contract of some sort, of which you are party.)

So.. does the conductor of an orchestra get royalty rights? He's just prompting the "actual" musicians.

She’s directing the orchestra. It’s semantically different than prompting.

It’s not like the conductor just says “okay, play Canon in D” and calls it quits. She actively participates in the performance and creation of the end work. And different conductors can absolutely yield different versions of the exact same arrangement. They’re as much a performer as any of the instrumentalists.

So yes, they get royalties like the other performers.

How is that any different than a prompt engineer other than the degree to which "...actively participates in the performance and creation"?

The degree is the important factor. Many seem to be ignoring the "merit and effort" portions of copyright.

A conductor has control over the tempo and cadence of the entire piece. They can choose to pause the entire performance on the spot and then resume right where they left off. They may adjust sections to play louder or quieter based on weather and acoustics.

And that's all during performance. There's work needing in at the bare minimum arranging pieces based on the band.

The real answer is "it depends". Live music copyright is way hornier an issue than AI. And yes, has been fought in courts for centuries.

But roughly speaking: writing music is an art, which is different from ochaestrating an ensemble in real time taking into account conditions for the audio. The author of the piece isn't always the orchestrator, and arrangements are another matter entirely .

But the LLM is a tool. If I use a set of colored pencils to draw you a bird, the pencil company doesn't own the copyright. I do. Because I used the tool.

What if I sell you intelligent pencils that connect to your brain and guides your fingers?

It's not black or white (you're using colored pencils, after all). A part of what is copyrightable is based on merit and effort as well as your tools.

You probably have a copyright to some landscape if you make it with colored pencils. If you simply take a picture you have more of an uphill battle claiming copyright.

Colored pencils don’t move themselves around the paper, and they’re not full of uncompensated training based on untold numbers of other artists’ work. They require full agency and imposition of your will. That’s why you get credit.

A photocopier is also a tool, but you won’t get credit for Xeroxing the Mona Lisa.

Not the least contrived situation, but I could imagine an inanimate object object falling from a shelf during an earthquake (a bonified 'act of god') which enters a 1 or 2 letter prompt and generates an image if the AI interface window was left open.

I've got a better, probably incoming situation:

I ask a deep-thinking LLM for a blog article, and to deliver that, it requests images from another LLM.

Everybody gangsta until an object object starts falling.

Pretty sure this wouldn't pass the merit part unless the prompt was unusually long and precise.

the human still made the prompt

What I can guarantee, is that series of prompts itself would be copyright-able. (The series of prompts that ultimately created the image.) No matter how little they may weigh any one of those prompts in isolation. That is, assuming the EULA of the LLM doesn't require you to essentially place your prompts in the public domain.

And of course,

<s>

everyone reads the EULA. Right?

</s>

> What I can guarantee, is that the prompt itself would be copyright-able.

That's non-obvious to me. Even if the prompt is extremely long and precise, if it is somehow purely functional, it seems possible for it to not be (although in practice, I agree that most prompts could be).

It is basically pseudo-code, and should have the same copyright as other code if it is sufficiently complex to pass the typical test for copyright. One might think code should not have copyright, but that is a different conversation.

Yes, I agree. I don't think I am saying anything inconsistent with that.

Code is purely functional and is copyrightable so why would a prompt not be?

A prompt has essentially the same purpose as code, especially when it's long and precise.

Code is not purely functional. If it is, it is not copyrightable (at least in the US; probably true elsewhere but I am less sure) [0]. I would not expect most prompts to be purely functional.

[0]: https://www.copyright.gov/circs/circ61.pdf

Unless you can make your prompt so specific that the AI generates substantially the same image every time you run it, I think you're perpetually vulnerable to the argument that significant decision making was done without human hands and therefore the work is not primarily human created.

That’s a good test. An artist working in oils can effectively create the same image over and over. An ai kind fails there.

As kids we did an art project where you mixed colors with some yoghurt-like substance. You drop it on the paper and then fold it. This created these beautiful arrangements of colors.

Does this mean that those works are not copyrighted either since the kids didn't actually direct where each color goes? Every time you do this you'd get a substantially different picture too.

I mean, these edge cases are very sensitive to the exact facts at hand. Even an experienced copyright lawyer can't give you a definitive answer until you go to trial. That's why I said you're vulnerable to the argument, not that you'll definitely lose the copyright.

Every time you do this you'd get a substantially different picture

This is actually a bad example. It's too easy for an IP attorney to bring in an expert witness,(read: physicist), and blow it out of the water in a courtroom.

I won't go into the details, but basically, you got different arrangements every time because the human did different things every time. In the case of generative AI, you get different arrangements every time when the human does the exact same thing every time.

So, if you can find it, the counterexample you're looking for is one where the human does the exact same thing every time. (In an unassailable mathematical and physics based sense of the word "same"). But gets different results.

The human is using a seed, whether implicitly or explicitly.

You can generate the same thing every time.

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