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.
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.
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.
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?
My guess would be the authors, photographers, etc. Many of who are not the rich but middle class. I would think if they did not benefit, none of this would even be an issue as they could release their work and waive the copyright-isn't that what the Creative Commons license is for? If copyright were forced on the author and they had no way to share their work freely, if they choose to do so, then that would be a problem, imo.
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.
It protects the open source contributions that I've made from the rich, by being able to take them and hide them away in a product that doesn't need to abide by the license enforced by copyright.
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.
Nothing inspired or creative about it. It comes out the same every time no matter who calculates it. That’s what people want to copyright except the first 2 is other people’s art and the second 2 are the weights.
Why do you think it doesn’t matter?
I, and others, don’t care if the process of observing and generating output works the same way because people and tools don’t need to be held to the same standard. As I’ve said numerous times elsewhere, big picture, AI and humans are different in practically every other way and that is seemingly never taken into consideration when promoting AI adoption. It’s also a big leap to say we fully understand how human creativity works which is still under study.
You may, I could be wrong, believe oppositely because it means you can benefit directly from these tools but other people view it through the lens of what they or others may lose and that is no less rational. Social constructs require social consensus. If you got rid of capitalism people might be more open to your viewpoint but as it stands this just smells like socializing human creativity for free, in a way people could never anticipate, to make other people money, no doubt consolidating more power in corporations, who can afford to run the models at scale, as is standard.
I suppose we’re unlikely to agree so I’ll leave it at this.
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?
https://www.sidley.com/en/insights/newsupdates/2025/02/us-co...
"Prompts Are Generally Insufficient to Make AI Output Copyrightable"
If you don't trust this summary, read the US Copyright Office report for yourself. The gist of the position is that prompts are not specific enough and do not lead to deterministic output.
On a side note, I find it weird that even on HN people automatically assume you're only expressing a personal opinion, yet in all fairness I should have included some references from the start.
... 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.
Like, really. If I open ms paint and just do some low effort scrawl, I have copyright on that. Level of effort has not ever decided if something is copyrightable or not.
For derivative works, there is real effort required to de distinct from the original. Maybe that's a more interesting discussion... Is low effort use of an AI insufficient to prevent the copyright from reverting to the original authors it was trained on?
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.
While he shoots with the cheapest of toy cameras, he is very skilled.
> 1966, Ted enrolled in as a fledgling photographer in Ansel Adams' Yosemite Photography Workshop --an event which markedly changed the course of his artistic life. He returned to Yosemite as Ansel's workshop assistant the following year, and in 1970 moved to Carmel to work fulltime as Ansel's Assistant and printer of Adams' Yosemite Special Edition Prints. Ted also returned for fifteen seasons as an Instructor at Ansel's Yosemite Workshops.
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.
I made different life choices that leave me unable to create and rather than belittle the accumulated effort of those who did by feeding their work into a machine, writing a prompt and claiming the output for myself I choose to be satisfied with the fruits of my labor and place in the world. Basic golden rule stuff, do unto others as you would have them do unto you.
In short, my opinion is no, you shouldn’t. If you disagree that is unfortunate.
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?
But there's the rub, right? If "you create" it, then it is copyrightable - so what is it that is this act of creation?
As posed elsewhere in this thread mentioned, how come taking out my phone and pressing the camera button with no authorial intent whatsoever is considered to be creative, whereas setting up a camera in a particular location and fully determining its settings, but letting an animal depress the button is considered to not be creative?
Part of the reason that this is on my mind is that I recently watched "Flash of Genius" [0] and found the legal arguments there about what merits an invention versus being obvious entirely silly. Essentially the movie (and my experience) shows that it all boils down to who has more time and money to spend on the legal system. I'm not saying that I have a clear solution myself, but I would really love to have something that is more than just "I know it when I see it".
No. Not everything people create is copyrightable.
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...
> As a matter of statutory law, the Copyright Act requires all work to be authored in the first instance by a human being. Dr. Thaler’s copyright registration application listed the Creativity Machine as the work’s sole author, even though the Creativity Machine is not a human being. As a result, the Copyright Office appropriately denied Dr. Thaler’s application.
It seems like Dr. Thaler's argument was just weak, since generative AI works often are authored in the first instance by a human being. For instance, any Midjourney or Stable Diffusion-generated image will be sourced from a prompt, which is typically written by a human. Anyone who has spent a little time trying to craft the perfect prompt knows there is a creative process therein that represents real work being done by a human. Similarly for img2img workflows, using a real photograph taken by a human. There, AI is only being used to transform a copyrightable input. Therefore such works – though certainly not all AI works – should be eligible for copyright, IMO.
What's potentially more of a problem is the mention of artists using Midjourney and denied copyright - and very much separate cases from Thaler.
This, it was a poorly concocted scheme. People do stuff like this all the time, but even when they manage to confuse one branch of the government, the rest of the government isn't suddenly obligated to go along with it.
Furthermore, the Copyright Office stated that prompts alone do not provide sufficient human control, as AI models do not consistently follow instructions in the prompts and often "fill in the gaps" left by prompts and "generate multiple different outputs"
- The text prompt
- The negative prompt
- The model
- The model seed
- Any LoRAs selected
What about this is copyrightable? The specific text used in the prompt? This would mean I could copyright "man holding apple".
Maybe the summation of all of the above? But that would be akin to copyrighting a specific Adobe Photoshop workflow.
No, it's more about ads and SEO and the fact that a lot of people like the touchy feely aspect of the stories and that causes them to engage with the site for longer, leaving their own comments and returning to the site and such.
It would be like saying a DJ's equalizer settings are copyrightable.
> This would mean I could copyright "man holding apple".
I think this is true today. You can have copyright on this phrase, just consider if it were the title of a song or poem.
That is not true today. You don't get a copyright on a phrase in particular if it was the title of a poem or song. For example:
"There's something in the way she moves" by James Taylor[1]
and "Something" by the Beatles[2] which starts with the same line.
James has the copyright over his song called "There's something in the way she moves" [3] and George Harrison's estate has the copyright over the one he wrote with the same title even though he probably copied it from James Taylor.
[1] https://youtu.be/p0FJUVo-BaM?si=fGR-TOim_8FS8rkO
[2] https://youtu.be/UelDrZ1aFeY?si=UG8c-cgfpgyH3I9n
[3] Which was the first one fwiw. He thinks because he signed to "Apple Records" (the Beatles' label) they heard his one when he recorded it before it was released and that maybe gave George Harrison the idea for the line.
By the same token, the prompt is copyrighted - but not the output it generates.
How does that apply when we transform a copyrighted image? Is the resulting work covered by the copyright of the original? If so, can I create a bad sketch drawing, transform it with img2img, and get the result as copyrighted? If not, is there a specific denoising threshold at which copyright isn't applied?
Say I create a website that just sells AI generated logos. I set up some automation so I'm constantly generating millions of logos per day.
I also have a bot that scrapes the web to try and find anyone using a logo similar to the ones on my website, and then send legal threats demanding payment for copying my artwork.
I'm sure more imaginative scammers will find a way to copyright troll using AI.
Also, a lot of logos are simply not "artistic" enough to be eligible for copyright. So in general, logos are more likely to be the subject of trademark litigation than copyright litigation.
Trademark law: In order to claim a trademark you must have used the mark in commerce. So a catalogue of logos not used in commerce is of no real value from a trademark perspective.
Copyrights are more about the process more than the product. This is why "clean-room" implementations do not violate copyright law.
Trademark is about commercial ambiguity.
I'm not a lawyer though, so I'm probably wrong. At the very least, the legitimate website makes the threatening letter look more believable.
Or just scrape logos, barely change them, and publish them and threaten legal action.
Sure. I guess when it finishes your great great grand-children (I might be very generous here too) can deal with the fallout of such a brute force algorithm.
This whole case has been a dumb waste of time for anyone but scurrilous headline writers.
The plaintiff insisted on filling out the copyright app with their "creation" in the author field. Every legal opinion since has had to start assuming that's true, making "no copyright for you" legally obvious. The plaintiff apparently tried to walk that back on appeal, to argue he authored the work using the software. There's a paragraph right near the beginning where the court points out it simply doesn't consider that argument, since it wasn't brought up to the Copyright Office, back when the plaintiff was insisting on the opposite.
As you can see here though, it's clearly not an unanimously obvious ruling though.
There was nothing to nail down here. The Copyright Office rejected the registration. The Review Board affirmed. The trial court affirmed. Three appeals court judges affirmed. No dissenting opinion.
[0]https://thenewstack.io/stephen-thaler-claims-hes-built-a-sen...
The court is ruling that computers themselves don't have the human right to copyright. Not exactly surprising.
No, it is just ruling that the Copyright Act requires human authorship. Whether computers have human rights is not an issue before the court.
This guy literally wants his pet AI to be listed as the author. He then wants to sublicense the work back to himself. The AI as the author is the point.
In court if it has to escalate? Why do you think legal cases take months or years, instead of days? They can subpoena your computer, your company, the AI generator's company, etc. And any communication related to it. Until they get an answer beyond reasonable doubt.
All that resource gathering takes time to write-up, justify, contact, and retrieve.
We could have a similar approach with patents.
This is a good question. More specifically, using photoshop with the integrated AI features. Where is the line exactly?
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?
A photocopier is also a tool, but you won’t get credit for Xeroxing the Mona Lisa.
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.
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.
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.
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 .
I ask a deep-thinking LLM for a blog article, and to deliver that, it requests images from another LLM.
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>
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.
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.
You can generate the same thing every time.
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).
A prompt has essentially the same purpose as code, especially when it's long and precise.
Another situation is simply making "significant" manual copyrightable manipulations to your AI generated work to make it copyrighted.
Outside of situations where the author doesn't really care whether the work is copyrighted (blog images, twitter memes), it may just slow down the process rather than stopping it.
I'm more concerned about the ingestion side of things. I can't deny that the technology is awesome and generally transformative, but it's hard to deny that it intuitively feels wrong to just process all of an artist's work into a database of numbers and use it however you want.
If artists gain widespread benefit from it too, maybe it's not as bad, but that doesn't help those who opt to not use it.
At the same time, how does this impact those who create AI generated art using models created from artists who signed off on it? Does this mean there's no room for a business to create copyrightable AI generated art and thus funnel money back to the artists the model was populated from? Couldn't that hurt artists even more if the avenues of profiting from the AI shift are cut off, or is the main benefit of that to avoid copyright claims on art that turns out too similar to an existing work you didn't have a license for?
Does that exist?
What would that even be? A "random2image" model?
I.e. the model named "starry-night-van-gough-with-bunny" can generate only one image.
If a human artist draws an image based on that prompt, do you share joint copyright between the two of you? Or, does the artist have full copyright over the image they drew?
If your contribution was insufficient for joint copyright in the case of the human artist, then it was also insufficient to grant you copyright in the case of the AI artist. To know whether you have a claim on the copyright of the resulting image, you only need to look at your own creative inputs.
I am not a lawyer, but that is my expectation of where this will ultimately end up.
Yes, for the purposes of this case, because that that is an accurate description of the image in this case is not a fact in dispute between the two sides. This is a case about what the law means given that uncontroversial (between the parties) fact.
No, its not.
This is not a case of the human trying to claim copyright as the author of a work made using AI tools.
> As the article notes, copyright applications are also being rejected in cases where a human asserts authorship over an AI generated work.
That is true (although at least one has been accepted by the copyright office, IIRC), but it is not an outcome of this case (even in the sense that this ruling might support it) because this case does not concern human claims of authorship at all. It concerns undisputed solely-AI creation.
Seems like a loophole, if I generate synthetic data with a model trained on copyrighted works, the synthetic data is copyright free? So I can later train models on it?
But philosophically, I wonder if it's allright to block that, it techincally follows the definition of copyright. It does not carry the expression, but borrows abstractions and facts. That's exactly what is allowed.
If we move to block synthetic data, then anyone can be accused of infringement when they reuse abstractions learned somewhere else. Creativity would not be possible.
On the other hand models trained on synthetic data will never regurgitate the originals because they never saw them.
If you are a human who creatively uses a tool to generate something, you’d get copyright protection.
Unlicensed AI Code is 0% copyrighted and open source and can't be closed.
Otherwise I would need to check the output of every LLM for copyright infringement
If you can perfectly prove that no copyrighted code was used in training a model and that the model was not algorithmically designed to output that code, based on knowledge of the copyrighted code on the creator's part, but it outputs code identical to a copyrighted program, it could very likely not be infringement... but obviously that's a high bar to clear for a complex program.
If your model always outputs
> #!/bin/bash > echo "hello world"
another programmer will likely not be able to claim copyright infringement on it. If it always outputs Adobe Photoshop, you're gonna need a very good lawyer, and a Truman-show-esque mountain of evidence on your side.
Very little.
> Why would a real person or company want to specify a non real person as an author?
Other than to needlessly complicate the claim that the work is subject to copyright? No reason at all.
Someone could steal my company's entire codebase and, outside potential password leaks, it'd really have little impact on our business. The code itself is less valuable than the coders, the data, and the business connections we've made.
Certainly not the case for all software, but I'd wager 90% of the work HN does would fall into this category.
Why is this anything other than a good thing? I just can't imagine people being starving artists with their medium being stable diffusion.. That's kind of a funny thought I guess, but doesn't this at the end of the day (perhaps symbolically) only further the possibilities and precedent around training models on all art? Because if their outputs aren't copywritable, who is going to care? Why is this anything other than a win? Who is the population harmed specifically with this ruling, actually?
This is fantastic news. A unanimous decision, and the correct one in my view, means an appeal is fighting uphill.
A minor victory but I hope it sends a chilling effect through the growing industry of AI generated music - copyright runs that industry with an iron fist. I hate the RIAA with a passion. I have never signed away my rights to 6StringMercenary and I reap the minor rewards. 10k Spotify streams is a small number for income purposes, but that’s because the RIAA and Spotify colluded to give independent artists a fraction of the revenue to split among themselves.
What a good, solid ruling for the protection of an already exploited class.
"The non-human cannot be the copyright holder."
Otherwise, if there was a human in the loop, they can be the copyright holder, if they want to lay claim to it.
Training a model on data is a different thing to scraping data. Generating output from a model is a different thing to training a model.
Each aspect of these things can and should be evaluated individually, furthermore, each relationship between them should be evaluated individually.
Make an argument for what things are good or bad and then make an argument for how the relationships between them influence each aspect.
This style of "art" is performative rather than expressive. Personally, I wouldn't commission either of them to clean my floor. =3
Can't wait until models generate models and we are finally free of the copyright and software patent troll extorsion rackets.
The models are not copyrightable, they are a derivative work of the collection of works that went into producing them as they are a mathematical transformation of that data.
Related to the other famous example - https://www.copyright.gov/comp3/docs/compendium-12-22-14.pdf
> The Office will not register works produced by nature, animals, or plants. Likewise the Office cannot register a work purportedly created by divine or supernatural beings although the Office may register a work where the applicant or the deposit copy(its) state that the work was inspired by a divine spirit.
> Examples:
> • A photograph taken by a monkey.
It then goes on...
> Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.
I believe that taking a bunch of photographs (or other works) and producing a model falls into that category of a machine or mechanical process that operates without creative input.
However I do also believe that a model is sufficiently transformative that it, in of itself, is not an infringement... and however again, the output of the model is not copyrightable itself and it may be infringing upon the works used to produce it.
Works produced by AI are copyrightable, just not newly copyrightable the agent who is executing the AI.
If we could identify the "bill of materials" (specimens of training data which were relevant to the generation of a given image) then we could apply to it copyright notice consisting of the catenation of the individual copyright notices.
I think that if an artist operates a purely local model, and trains it only on their own art, then the result should absolutely by copyrightable by that artist.
It's no different from a binary executable being your copyright if you built it from sources that are your copyright. We don't squabble about compilers not being human.
If you are stupid enough to go to a court and say "I didn't make this painting, the paintbrush did!", don't be surprised when they roll their eyes and say "well, your paintbrush isn't a human and therefore doesn't qualify".
I think many have not understood the implications of the CO ruling. This means anything you build with llms you don't own. Your company doesn't own. If your using copilot and you have a copyright notice at the top of your source file if that ever goes to court you will learn that copyright is not valid. You cant even put an open source license on the output, like the GPL, because...drumroll...you don't own the copyright.
[1] https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
From your own link:
"“To be sure,” the Court further explained, “the requisite level of creativity is extremely low; even a slight amount will suffice."
"The Office agrees that there is an important distinction between using AI as a tool to assist in the creation of works and using AI as a stand-in for human creativity. "
"The Office concludes that, given current generally available technology, prompts alone do not provide sufficient human control to make users of an AI system the authors of the output. "
Where the US ruling differs from others:
"Repeatedly revising prompts does not change this analysis or provide a sufficient basis for claiming copyright in the output."
Where China has had 2 cases where it supported multiple prompt changes + watermark
Also they dont rule out a change:
"There may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship. If further advances in technology provide users with increased control over those expressive elements, a different conclusion may be called for"
^ I would (and have) suggested that the above would likely cover the masking tools available in most image generators.
Its certainly not a case that "AI generative outputs are not copyrightable".
"There may come a time when prompts can sufficiently control expressive elements in AI-generated outputs to reflect human authorship. If further advances in technology provide users with increased control over those expressive elements, a different conclusion may be called for"
Because any "advancement" in this space is predicated on getting tighter control over the requested outcome.
You can already script a local image generator to come up with random images based on text searches or LLM output. Thats already not copyrightable anywhere.
For example if I code an entire application in c by myself without ai then told ai to redo the whole thing in rust I would retain copyright.
If you just prompt the same application from scratch and accept by in large the outputs. No copyrighht. This is how the vast majority are using it to create new systems not using it as a tool to enhance majority human generated code or images or books etc.
The more it creates from pure prompts the lesser chance you have to claim copyright.
[Citation Required]
Largely covered by the other quotes. I think it would be quite difficult to create a product worth protecting using "prompts alone".
No debugging? No editing? Who put the graphics on it? Who built the database and schema?
The co-author/co-editing approach is already blessed in the document linked earlier. Code is already subject to some of the best co-editing tools in the ecosystem. Even if someone manages to avoid co-editing tools, launch a product having used "prompts alone" and monetise it, how are you going to prove that they didn't take the co-editing approach to development? And how are you planning to challenge their claimed copyright? Why would you challenge their claimed copyright instead of just generating it yourself?
I could conceive of some kind of anti copyleft organization that dedicates itself to challenging every unskilled software development firm, using the discovery phase to pull records of what tools were used. But who would fund such a witch-hunt?
Or maybe every time some firm tries to assert their copyright, we will see lawyers hit back with "Prove you coded this and didnt generate it wholecloth via LLM" clogging up the courts for decades.
>The more it creates from pure prompts the lesser chance you have to claim copyright.
Yeah but unlike image generators and media articles its going to be a lot tougher to prove.
NovelAI has a feature where it does text highlighting based on:
"User wrote this" "User edited this" "Generated"
It sets this on a per sentence basis.
I have wondered for a long time whether this will become mandatory in some jurisdictions. But even then, if you copy the text, and paste it in a new window, bam its all considered user generated again.
That's a factually incorrect and legally inconvenient claim. Turns out you can convince the court of whatever you want if that means you lose your case:
"Yes your honour, I was both at my home and at the crime scene at the same time as I am omnipresent"
Doesn't mean alibis are no longer valid in court
Non tech people deciding on tech cases. In the next episode we will get AI paintbrush smart enough to help you but dumb enough the court still let's you copyright your work. Top legal minds deciding if it's sufficiently dumb to meet arbitrary standard they came up with when deciding the previous case.
In this case, no, because the human involved explicit sought a copyright registration listing the AI as the author, and claims that the work was entirely the product of the AI.
(In point of fact, yes, the AI is a tool used by a human, and to the extent the work may be copyrightable, copyright should have been sought listing the human author; but that's not what happened, and the case deals with the legality of what was actually sought, not what arguably should instead have been sought.)
> Non tech people deciding on tech cases.
Almost as bad as non law people commenting on law cases.
here's one way I think that could be helpful. I read an interview with the final fantasy 6 director where he said doing a final fantasy 6 remake would probably take 20 years because the amount of content (and various art decisions) would take so much longer to make under today's expectations.
I wonder if projects like that would be closer to possible if artists could get AI to do maybe 10-20% of the work for them, like a 1st pass at background scenery or a 3d model or something or fixing a small flaws in motion capture
that said, i sympathize with the artists because i want to control every penstroke and every keystroke, maybe AI assisted art is a more difficult problem than it sounds. most likely AI assisted art will look less like prompting and more like advanced photoshop tools (like take this line sketch + a prompt and rough shade it for me).
i could kind of see some potential in something like based on the different kinds of choices a player makes in the game, it could generate different portraits or character designs, but you can also do that with a large library of human art or with art with modular pieces.
the thing AI can do is create something custom and individualized for a player, but on the other hand, by being too personalized, you destroy commonalities in the game that people can appreciate together.
I have trouble finding public domain pics & vids
So this guy is arguably doing more damage than anyone to AI. The rulings against him are inarguable. He wants his custom AI to be included as an author.
People take these rulings, misunderstand them and assume all AI tools create work that cannot be copyrighted, when plainly, every other AI tool lists the user as the author, and not the tool.
Assume that they generate the entire movie in low poly count with flat shading, enough to properly prime an AI to generate incredible-looking movies. It simply cannot be true that they would lose the copyright to it just because they immersed it in AI.
I don't really see the difference between asking Midjourney or whatever for an image, and asking my phone to fill a buffer from the camera sensors and fix that up into a "photograph".
As if, I mean I'm suspecting that, exposure to generative image output is triggering model collapse even for us humans?
If I use the AI photo as a reference to make a painting by hand it’s also my copyright since the original photo isn’t owned?
(2) the work produced by the AI photo generator may itself be sufficiently derivative of other works that your work is also derivative and the original author may have a copyright claim against you since only they can authorize the distribution of derivative works.
(3) If you use the AI photo as a reference for a painting, this again falls into the "it may be derivative of another work."
For example, if I asked "Create a realistic black and white photograph of a moon rising over Half Dome in Yosemite." and it generated an image that was derivate of https://articles.anseladams.com/story-of-moon-and-half-dome/ and then you used that image as a reference for your own, your image may be considered derivative of the Ansel Adams image.
Just because the AI can't claim copyright on an image doesn't mean that the image it generated is not derivative of another that you would potentially be infringing on.
You can generate AI art that doesn't involve a prompt, using only random noise and sampler settings as input. It's a good way to test for bias in the training material or overfitting for a specific style/type of content.
The interesting cases will be the ones where the boundaries of copyrightability for works where a human claims copyright for works created using AI-assistance are hammered out.
Can AI create at all?
By our own human definitions of creation, does anything spit-out by LLM, ML, AI, have any merit as a created -thing-?
Can the sum of what is learned by a model become more, and if so, can that create something? Anything?
I did a little reading on the subject, and it looks like these questions are still in the process of being answered.
I think its a good trade! I’ve made a lot of money on AI generated works and it was never from selling or licensing the copyright
Code written by a llm is not copyrightable?
I'm also sure many of you understand the farther reaching implications of this ruling, especially how it relates to software code written by AI. All that code written by AI cannot be licensed as anything besides public domain. Just think of all the code people have checked into git, that they did not write! Next, please consider the implications towards the open source community if ever there is controversy about Linux kernel code that was AI generated, and then suddenly cannot be covered by the GPL. I think the neck-beard people over at NetBSD can sometimes be eccentric about many things, but this topic was deserved when they loudly banned all AI generated code from their repos.
If we graph it: Sloppishness is the Y axis and if we then put progres-in-AI on the X axis, the two lines will eventually touch each other. With some segment¹ of the population not being able to tell the difference sooner than others, slowly reducing available budget of handmade media, increasing it's slop over time. Therefore progress in AI will reduce the quality of even handmade media.
¹ https://pleated-jeans.com/2024/07/15/boomers-fooled-by-ai-fa...
The issue is that, for the US in particular, the bar is a bit higher on how much human input is required. But generally, some human labor needs to be mixed with the result for it to be yours.
Every jurisdictions going to come up with a different standard, and then there will be an international treaty on it and then everyone will pipe down.
The real problem is that Congress is institutionally incapable of making simple amendments to law. Everything gets delegated to agency rule making regardless of whether anyone likes the outcome.
Do you think autonomous computer algorithms (to the extent we could suppose they exist, for the sake of argument) should have a statutory right to copyright?
It's a weird world where works created with a prompt are not creative enough for protection but pictures taken by randomly pointing smartphone cameras (which use significant amounts of AI internally, btw) are copyrightable.
In other words is there important AI art that society would be missing out on because the originator deemed it not worth the effort without some protection against unauthorized copies being made?
What about movies like Deadpool3, where AI wrote part of the script?
This is going to be a very selective judgment.
Two quotes from the judgement
> On the application, Dr. Thaler listed the Creativity Machine as the work’s sole author and himself as just the work’s owner.
and
> Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and using the Creativity Machine because that argument was waived before the agency.
Make it very clear that this is NOT an opinion on if a human being can be said to be the author of a work that they used an AI to generate. Dr. Thaler listed the machine itself as the author on the original application, and has therefore conceded that he is not the author. The courts cannot concluded that he filled out the form in error, and must accept the facts as given. This judgment says that if you decide that the machine is the author, then you can't claim copyright. It says nothing about what happens if you claim that you are the author.
This would of course not carry over when we talk about liability, since the defendant doesn't get to decide what the claim is in those cases.
If you're saying that the AI created deep fake cannot be copyrighted well then you would be in line with what the court said. If you are saying that there is a logical extension that a machine created something at the behest of a human that that human cannot be held responsible for the creation, that is not what is being said at all. As a matter of fact there is a long history of things and not being able to be copyrighted but people can still be held criminally liable for.
As a software engineer I see the dangers of such an inexact system. Where we can put people in jail for the rest of their lives or let others go free just because there's so much gray area in the interpretation of the law.
It’s better than judges have some discretion.
These things are basically like JPEGs for knowledge and text. If I make a JPEG of a work I do not strip copyright from it. Of course since the trained model is a cumulative set of all inputs the rights are the set disjoint of the rights the trainer had on the data.
If we allow these things to be copyrightable it allows what amounts to for-profit corporate piracy and unlicensed resale of all works.
Because anyone could point point out that your jpeg contains a copy of the work. It's a lot harder to point out a copy of any work in an AI model. They're trained on so many images that you can't even represent one pixel worth of data per image.