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.
Regarding poetry, while I share your sentiment, what I notice in these discussions is that the emotional response to "done by AI" vs. "done by human" (or, on other forums, "done by furry") counts for a lot.
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…
All this is pretty much grey area anyways. Both sides have merit.
But it would be difficult to adjust that without making the rules even messier.
> but if they do so without me "prompting" them, then I no longer am?
We prompt the AI. I do not see how AI generated art cannot be copyrighted, TBH, but I am against copyright in general (or the way it is done abroad).
Must read:
https://mises.org/mises-daily/patents-and-copyrights-should-...
https://fee.org/articles/mises-on-copyrights/
TL;DR, FWIW:
Mises supported intellectual property rights, including copyright, as a necessary legal tool in a free-market economy to incentivize creativity and innovation. He viewed intellectual property as a socially constructed right to protect creators' labor but cautioned against excessive or monopolistic extensions that could harm competition and economic efficiency.
Rothbard opposed intellectual property rights, including copyright, as state-enforced monopolies that interfere with the free market. He argued that ideas, being non-rivalrous, cannot be owned like private property. Rothbard believed intellectual property could be protected through voluntary contracts, without state involvement, in a truly free market.
To say on topic:
Mises: Likely supports copyright for AI-generated art if the human user contributes creatively (prompt, modifications).
Rothbard: Opposes copyright for AI-generated art, as he believes intellectual property should be based on human labor and not state-enforced monopolies.
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.
Yes, the GPL is a hack on the distribution of derivative works... but without those teeth to bite with and enforce, then nothing prevents one from taking some code that is not-copyrighted, making changes to it, and keeping the code to it completely in house while releasing it in a way that is not user modifiable.
The ideals of the GPL (and AGPL) of sharing the contributions back to the community to further progress would be unenforceable and lost.
It would be unreasonable to say that every web site out there or SaaS service needs to provide the source code to rebuild their site by someone else.
I will also point out the "write a law" would only apply to one country. Host it in another country and you could thumb your nose at the law. You would really want an international treaty such as the Berne Convention, or TRIPS, or WCT... which are implemented as copyright. Any changes to copyright would imply that that country is withdrawing from those treaties.
https://www.gnu.org/philosophy/rms-nyu-2001-transcript.txt
And we just had to suffer with waiting. It would take an hour or two to
get your printout because the machine would be jammed most of the time.
And only once in a while -- you'd wait an hour figuring "I know it's
going to be jammed. I'll wait an hour and go collect my printout," and
then you'd see that it had been jammed the whole time, and in fact,
nobody else had fixed it. So you'd fix it and you'd go wait another
half hour. Then, you'd come back, and you'd see it jammed again -- before
it got to your output. It would print three minutes and be jammed
thirty minutes. Frustration up the whazzoo. But the thing that made it
worse was knowing that we could have fixed it, but somebody else, for his
own selfishness, was blocking us, obstructing us from improving the software.
So, of course, we felt some resentment.
And then I heard that somebody at Carnegie Mellon University had a copy
of that software. So I was visiting there later, so I went to his
office and I said, "Hi, I'm from MIT. Could I have a copy of the printer
source code?" And he said "No, I promised not to give you a
copy." [Laughter] I was stunned. I was so -- I was angry, and I had no
idea how I could do justice to it. All I could think of was to turn
around on my heel and walk out of his room. Maybe I slammed the door.
[Laughter] And I thought about it later on, because I realized that I was
seeing not just an isolated jerk, but a social phenomenon that was
important and affected a lot of people.
Now, this was my first, direct encounter with a non-disclosure agreement,
and it taught me an important lesson -- a lesson that's important because
most programmers never learn it. You see, this was my first encounter
with a non-disclosure agreement, and I was the victim. I, and my whole
lab, were the victims. And the lesson it taught me was that
non-disclosure agreements have victims. They're not innocent. They're
not harmless. Most programmers first encounter a non-disclosure agreement
when they're invited to sign one. And there's always some temptation --
some goody they're going to get if they sign. So, they make up excuses.
They say, "Well, he's never going to get a copy no matter what, so why
shouldn't I join the conspiracy to deprive him?" They say, "This is the
way it's always done. Who am I to go against it?" They say, "If I don't
sign this, someone else will." Various excuses to gag their consciences.
Nothing required Xerox to give Stallman the source code to the printer driver. And in a world without copyright, nothing would require Xerox to give Stallman the source code to the printer driver either. And it wasn't copyright that prevented Carnegie Mellon from giving him the source code - it was a separate contract - an NDA.The four freedoms are guaranteed for open source because of copyright. Without copyright, the first freedom (with the access to the source code) for open source software is not possible. Copyright gives the author the ability to force others who use the software that they've licensed to be similarly open.
Consider this challenge - write a license on top of some public domain ( https://en.wikipedia.org/wiki/Public-domain_software#Public-... ) work that requires that I follow it and that the work that I do provides the four freedoms - that would prevent me from taking the code and repackage it in my own binary in a way that I'm not obligated to disclose to you or that you wouldn't be able to replace with your own library.
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.