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Comment by davely | Hacker News Reader

Oof, this gets into all sorts of weird legal grey areas.

- 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.)

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There's a startup doing something close to this. I can't remember the name and I'm not going to look it up, but the pitch is that you feed it a copyright stock image and it uses AI to create a usable-but-clearly-different near equivalent - a situation where absence of copyright is a feature, not a bug.

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.

In short, in situation 1 there is no issue. In situation 2, if the original image can be copyrighted, AI tooling to augment the image doesn’t prevent copyright. The copyright offices guidance on the subject is a worthwhile read, since they detail out the difference between using AI as a tool to modify human authorship, vs the AI taking minimal input alone and generating a resulting image.

"Minimal input" like pushing a button on a camera? Seems to me that is more minimal than some of the elaborate prompting it takes to get AI to output a desired image.

I guess if the prompt is complex enough to be protected then the image would be too?

Gotta be 1,000 words.

> Gotta be 1,000 words.

What? Why? There's poems and stories shorter than that that must be copyrightable.

There's a saying, "a picture is worth a thousand words".

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.

It goes away beyond this. You can create your own custom Lora. The tags that go into that, combined with prompting is sophisticated authorship.

It can be reasonably be considered technical than handling a professional camera.

What if the ai augments the shutter timing because you were shaking? The ai monkey pressed the shutter so no copyright I guess? Pretty sure several apps do this on night photo mode.

Then I would assume it’d be treated as a tool in the creative process, similarly to a ruler helping you draw a straight line, but the author is still the human.

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.

You better be willing to question whether photographs can be copyrightable at all, because they are all result of several mechanical systems not created by the camera operator.

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.

By that logic, paintings aren't copyrightable either because of all the chemistry involved in drying pigment.

The limits of copyright are intrinsically arbitrary, since the right has its foundations in fantasy, i.e. supposed spiritual labour. An extension of the idea that your physical labour gives you property rights to the fruits of it, into the religious realm of the soul.

Why would anyone need to question whether photographs can be copyrighted at all? It's been settled jurisprudence for quite a long time.

The other aspect here is you can't copyright an observable truth. For instance, sports companies tried to sue other sports companies for scraping their scores feeds but courts ruled you can't copyright the fact Patriots beat the Falcons 35-30, because that's simply what happened. There isn't any proprietary scoring keeping mechanism. Anyone who observed the game also can determine those numbers. It is an observable truth. So maybe that applies to the raw photo. You are simply capturing what happened from that POV at that moment in time. Sure if you do something with that photo, then it may become more than an observable truth.

>You better be willing to question whether photographs can be copyrightable at all, because they are all result of several mechanical systems not created by the camera operator.

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.

No, that's the opposite of my point: what the camera does is mechanical work, it is explicitly not creative.

> - 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?

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.

This is already essentially in iOS. In Photos edit mode, there is a Clean Up tool.

- 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?

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.

There was a post someone made, some time ago, where they took a picture of a rabbit, with its head turned away from the photographer, so its eyes were not visible, and their iPhone painted an eye on it, because the profile was the same as if the rabbit had its head facing forward.

It was in the discussion about the fake Samsung moon photos.

To some degree it wouldn’t be hard to do non-destructive editing and save the original sensor data, and embed the developed jpeg (or heif) in it. This is already normal for digital cameras when shooting RAW.

This has sort of already happened. There was a fair bit of fuss around a very similar topic during the Kyle Rittenhouse trial. The prosecution were not allowed to zoom in on drone footage because the defence successfully argued that zooming in results in the creation of information through interpolation which was not there in the original recording.

Wouldn't they be derivative works of a copyrightable work?

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