Comment by rdtsc | Hacker News Reader

Comment by rdtsc | Hacker News Reader

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> But I can hire an artist and ask him to draw me a picture of Indiana Jones,

Sure, assuming the artist has the proper license and franchise rights to make and distribute copies. You can go buy a picture of Indy today that may not be printed by Walt Disney Studios but by some other outfit or artists.

Or, you mean if the artist doesn't have a license to produce and distribute Indiana Jones images? Well they'll be in trouble legally. They are making "copies" of things they don't own and profiting from it.

Another question is whether that's practically enforceable.

> Where did I (or the artist) violate any copyright (or other) laws?

When they took payment and profited from making unauthorized copies.

> It is the artist that is replaced by the AI, not the copyrighted IP.

Exactly, that's why LLMs and the companies which create them are called "theft machines" -- they are reproducing copyrighted material. Especially the ones charging for "tokens". You pay them, they make money and produce unauthorized copies. Show that picture of Indy to a jury and I think it's a good chance of convincing them.

I am not saying this is good or bad, I just see this having a legal "bite" so to speak, at least in my pedestrian view of copyright law.

The likeness of Indiana Jones is not protected in any way - as far as I know - that would stop a human artist creating, rendering and selling a work of art representing their creative vision of Indiana Jones. And even more so in a private context. Even if the likeness is protected (“archaeologist, adventurer, whip, hat”) then this protection would only be in certain jurisdictions and that protection is more akin to a design right where the likeness would need to be articulated AND registered. Many jurisdictions don’t require copyright registration and do not offer that sort of technical likeness registration.

If they traced a photo they might be violating the copyright of the photographer.

But if they are drawing an archaeologist adventurer with a whip and a hat based on their consumption and memory of Indiana Jones imagery there is very little anyone could do.

If that image was then printed on an industrial scale or printed onto t-shirt there is a (albeit somewhat theoretical) chance that in some jurisdictions sale of those products may be able to be restricted based on rights to the likeness. But that would be a stretch.

The likeness of Indiana Jones, as a character, is owned by Disney

If they show that image to a jury they’ll have no issues convincing them the LLM is infringing.

Moreover if the LLM creators are charging for it, per token or whatever, they are profiting from it.

Yes are there jurisdictions were this won’t work and but I think in US Disney lawyers could make viable argument.

I wasn’t talking about LLMs, I was talking about human artists.

With the LLM it would be nothing to do with likeness, it would be to do with the copyright in the image, the film, video or photograph. The image captures the likeness but the infringement would not be around the likeness.

> I wasn’t talking about LLMs

Sorry for the misunderstanding. I was thinking of LLMs mostly.

> With the LLM it would be nothing to do with likeness, it would be to do with the copyright in the image

I guess I don't see why it wouldn't be about a character's likeness. It's not just a generic stock character, as an idea but it has enough distinctive characteristics, has a particular style hat, uses a whip. Showing that image to any jury and they'll say this is Indy. Yeah there are trademarks as well and both can apply to characters.

Trademarks can’t apply to characters, in themselves, no. A trademark can apply to a particular fixed representation but not the likeness, or ‘essence’ if you like. The essence of Indy is the whip, the hat, the grizzled demeanour, the dry humour, the archaeologist adventurer.

You can think of likeness as something that could be captured by hieroglyphics, or emoji - or a game of charades.

Think of Betty Boo or Wiley Coyote. You might not be able to close your eyes and picture them exactly but you can close your eyes and imagine the essence.

So in some jurisdictions if you register a broad representation - a likeness - you can protect that in law. In almost all jurisdictions if you photograph or draw something that literal snapshot is protected. But in many jurisdictions if I took a still from a scene of Indiana Jones (which WOULD be protected by copyright) and I described it to you and you were a great artist and drew the whip, the hat, the grizzled face, the safari vest, etc - there would be nothing to protect that likeness.

Trademarks are another thing entirely, and are things like logos, and the protection is more about commercial exploitation and preventing misleading us.

I could draw a cartoon logo of a man with a hat and a whip for my archaeological supplies shop. You could not take it and use it on your Chinese manufactured whips drop shipped via Amazon. But the owner of the Indiana Jones trademark- likeness rights, film copyright etc would be unlikely to be able to stop me using my logo until I start saying it is Indiana Jones, at which point they maybe invoke likeness rights.

There are at least three different rights classes here! It can be very confusing.

> Yeah there are trademarks as well and both can apply to characters.

I didn't say this was a trademark case just that there are multiple different aspects possible to the likeness issue.

> Or, you mean if the artist doesn't have a license to produce and distribute Indiana Jones images? Well they'll be in trouble legally. They are making "copies" of things they don't own and profiting from it.

Ok, my sister can draw, and she gifts me an image of my favorite Marvel hero she painted to hang on my wall. Should that be illegal?

straight to jail /s

The question is not whether it should but whether it is.

The likeness of the character is owned by Marvel. Does it mean there aren’t vendors selling unlicensed versions? No. I am sure there are. But just because not everyone is being sued doesn’t mean it’s suddenly legal.

That’s not how copyright law works.

Commissioned work is owned by the commissioner unless otherwise agreed upon by contract.

So long as the work is not distributed, exhibited, performed, etc, as in the example of keeping the artwork on their refrigerator in their home, then no infringement has taken place.

> Commissioned work is owned by the commissioner unless otherwise agreed upon by contract.

I think the LLM example is closer to the LLM and its creator being like a vendor selling pictures of Indiana Jones on the street corner than hiring someone and performing work for hire. Yes, if it was a human artist commissioned to create an art piece, then yeah, the commissioner owns it.

As far as I know, if you're speaking of the United States, the copyright of commissioned work is owned by the creator, unless otherwise agreed upon specifically through a "work made for hire" (i.e. copyright transfer) clause in the contract.

Ownership of artwork is independent of copyright infringement. Derivative works qualify for their own independent copyright, you just can’t sell them until after the original copyright expires.

Just because I own my car doesn’t mean I can break the speed limit, these are orthogonal concepts legally.

> [If commissioning some work and] keeping the artwork on their refrigerator in their home, then no infringement has taken place.

I'd like to push back on this: Is that legally true, or is it infringement which just happens to be so minor and under-the-radar that nobody gets in trouble?

Suppose there's a printer in my room churning out hundreds of pages of words matching that of someone's copyrighted new book, without permission.

That sure seems like infringement is happening, regardless of whether my next step is to: (A) sell it, (B) sell many of it, (C) give it away, (D) place it into my personal library of other home-printed books, or (E) hand it to someone else who paid me in advance to produce it for them under contract.

If (A) is infringement, why wouldn't (E) also be?

Yep, my parents commissioned an oil back in the 70s that was a near duplicate of another artist's painting- they couldn't have afforded the original artist, so he has not lost anything and the painter did the painting as a hired work, so legally I doubt any law was broken.

Hangs on my wall now- I know I can never sell until the copyright on the original runs out (which it most likely won't in my lifetime) it but it is a very well done painting and a family legacy piece I am glad exists.

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