Artist is Suing Copyright Office For Refusing to Register His AI Image
Artist is Suing Copyright Office For Refusing to Register His AI Image
The Copyright Office has a clear policy on AI.
An artist who infamously duped an art contest with an AI image is suing the U.S. Copyright Office over its refusal to register the image’s copyright.
In the lawsuit, Jason M. Allen asks a Colorado federal court to reverse the Copyright Office’s decision on his artwork Theatre D’opera Spatialbecause it was an expression of his creativity.
Reuters says the Copyright Office refused to comment on the case while Allen in a statement complains that the office’s decision “put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work.”
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You have to be the creator of the work in order to copyright it. He didn't create the work. If the wind organized the leaves into a beautiful pattern, he couldn't copyright the leaves either.
Weirdly enough the monkey selfie probably establishes some precedence here, https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
Problem is the AI isn't a monkey with a camera, it is an algorothm licensed from a company. The guy basically outsourced the work and tried to copyright the finished product which might be fine depending on the legal agreements and if the AI Company has the rights to it.
You could copyright a photograph of that leaf pattern though, couldn’t you?
but its just a photocopy of the leaves, not the actual leaves. And to photograph something, you capture it according to your will. What will be the light situation, from which angle, at what focal length,... so many options.
This is getting weird.
If I would generate an image with an AI and then take a photo of it, I could copyright the photo, even if the underlying art is not copyrightable, just like the leaves?
So, in an hypothetical way, I could hold a copyright on the photo of the image, but not on the image itself.
So if someone would find the model, seed, inference engine and prompt they could theoretically redo the image and use it, but until then they would be unable to use my photo for it?
So I would have a copyright to it through obscurity, trying to make it unfeasible to replicate?
This does sound bananas, which - to be fair - is pretty in line with my general impression of copyright laws.
Copyright covers your creative expression.
For example, you draw a superhero named "LemmyMan" and post it online. All of your creative choices are protected. If someone made another LemmyMan with a different caption, they would be violating your copyright because you created everything about LemmyMan, not just the caption in your drawing.
Now suppose you take a photo of Mount Everest. Mount Everest is not your creation, but the choices of lighting, foreground, and perspective are. Someone could not copy your exact photo, but they could take a different photo of Mount Everest making different creative choices.
The same is true of taking a photo of work in the public domain, like the Mona Lisa. If you make no creative addition to the Mona Lisa in your photo, then you have no copyright at all. If you put some creativity into your photo, like some interesting lighting, then those creative elements are protected. But anyone else could still take a photo of the Mona Lisa with different lighting, the subject itself is not under copyright.
Now suppose you tell an AI, "Draw me a superhero", and it outputs ChatMan. If you make no further creative additions, then you have no copyright at all. But suppose you add a caption to it. Then the caption is your creative expression, so that is protected. But the rest of ChatMan is not, it's in the public domain just like the Mona Lisa. Anyone else can make their own version of ChatMan that's exactly the same minus your caption, because the underlying subject is not protected.
You just inadvertently explained why copyright doesn't cover training. Thanks.
Copyright doesn't cover the output of training. But AI companies are being sued over training input.
If you want to download a bunch of images from the Getty catalog, you need permission from Getty. If you don't have their permission and download them anyway, you can be sued. It doesn't even matter whether those images are used for training or some other commercial purpose unrelated to AI.
Depends on the training and the output.
Just like if you photographed the Mona Lisa in such a way as it recreated the piece as if it wasn't a photograph, a model sufficiently trained that can reproduce the original training data, you have copyright issues.
Problem is that many models can do this, but it's a mathematically improbable occurrence.
If I make a stamp that's made of 1 billion exact copies of different copyrighted photos and cut it infinitesimally small, and mixed it up, the problem that it can produce the original work that it was made from still becomes a copyright issue.
You'd have to prove the opposite, in fact. That it's mathematically impossible for your model to reproduce the copyrighted content for it not to be an issue
It's human expression that is protected by copyright. Creative height is the bar.
If you've done nothing but press a button there's often no copyright. Photography involves things like selection of motive, framing, etc. If you just photograph a motive which itself doesn't have copyright, then what you added through your choices is what you may have copyright of. Using another's scan of a public domain book might be considered fair use, for example (not much extra expression added by just scanning)
Independent creation is indeed a thing in copyright law. Multiple people photographing the same sunset won't infringe each other's copyright, at least not if you don't intentionally try to copy another's expression, like actively replicating their framing and edits and more.
Doesn’t modern art include works that are simply paint streaks left on canvas from someone quickly swinging a brush with paint on it at a distance?
Why is the phrase used by an AI prompt not considered more effort than that? The former requires no thought, only movement. The latter requires an understanding of language, critical thinking and the ability to envision an end result that isn’t just a paint splatter.
Because in a Jackson Pollock painting, the artist was in complete control of his paintbrush as it swung through the air. Not to mention the choice of brush, the amount of paint, the color, etc. If there is a blue streak in the upper left, it's because Pollock wanted a blue streak in the upper left.
An AI prompt is more like handing your camera to a passerby in Paris and saying, "Please take a photo of me with the Eiffel Tower in the background". If your belt is visible in the photo, it's because the passerby wanted it there. That's why the passerby, not you, has a copyright over the result.
Your first paragraph is just nonsense. Please go try to swing a paintbrush and get every drop exactly where you want. It’s not possible. It’s literally why pollock painted that way.
Being in control does not mean achieving what you "want" or intend.
You are in control of your car, even if you unintentionally hit a tree. Likewise, Pollock controls his paintbrush, it is held by his hand which only he can move. If he flicks paint on his friend's new jacket that might not be his intent, yet he is still 100% responsible for that outcome.
If there is a blue streak in the upper left, it's because Pollock wanted a blue streak in the upper left.
Your words.
Yes, he wanted a blue streak in the upper left. That doesn't mean he intended every last drop of blue paint exactly as it landed. He is nevertheless responsible for every drop of paint, because he controlled the paintbrush and he is the one who caused them to fall where they fell.
Likewise, a surgeon wants to cure a patient with a scalpel. He doesn't necessarily intend every complication that happens to the patient. He is nevertheless fully responsible, because he fully controlled the scalpel that caused those complications.
Hmm.. what about pendulum painting? Where you put paint in a bucket, put a hole in it, and let it swing back and forth over the canvas?
On one side he chooses paint and size of hole and initial path and so on, but on the other hand he let nature and physics do the actual painting for him.
In this case, it sounds like all the key creative choices (eg form, color, background) were made by the artist.
No they weren’t. Their brush was being influenced by every piece they had seen before. None of those arguments are any different than the resin was in control of the prompt when they requested the image. This is nothing more than human/biological exceptionalism.
Copyright law is absolutely based on human exceptionalism, because it is meant to incentivize humans.
Indeed. ‘Fountain’ is widely recognised as a major landmark and it’s just a urinal in a museum.
The painting "This is not a pipe" sort of touches on this very topic. A picture is not the thing pictured much like a photo of an AI image is not that image.
Fun mind teasers!
You can copyright a combination of words, though, and it was his unique combination that created the art. The artist doesn't copyright the palette, and the shop that sold the pigments holds no ownership over the painting. If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
It has to be fixed in a tangible medium.
In this case they’re not “fixing” their words and the final art is the created expression. Yet in this case their created expression wasn’t created by them but the program.
In this case their combination is the palette and paint but the program “interpreted” and so fixed it.
For example you can’t copyright a simple and common saying. Nor something factual like a phone book. Likewise you can’t copyright recipes. There has to be a “creative” component by a human. And courts have ruled that AI generated content doesn’t meet that threshold.
That’s not to say that creating the right prompt isn’t an “art” (as in skill and technique) and there is a lot of work in getting them to work right. Likewise there’s a lot of work in compiling recipes, organizing them, etc. but even then only the “design” part of the arrangement of the facts, and excluding the factual content, can be copyrighted.
Using stuff like controlnet to manually influence how images are shaped by the ML engine might count, there's some great examples here (involving custom Qr codes)
In general these art pieces are not created simply with words. Users control the output using ControlNet which allows drawing on the image to force regeneration only to specific areas. It seems that if your only logic around it being non-copyrightable is due to them using words and that the program “does it all”, but that’s just not how it works.
I’m not in favor of copyrights for stuff like this, but you have a terrible misunderstanding of how these art pieces are created and it’s affecting your argument negatively.
You cannot copyright a recipe, but you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.
Can a person who works with wood and creates something unique from the wood then copyright their design crafted from the wood? What makes it art and not just glue, iron nails, and dead trees? This is what needs to be defined with AI. Right now everyone is so happy to jump on the anti-AI bandwagon that they blind themselves to issues regarding the law by claiming the art is lawless at best and stolen at worst, when in fact it is simply a new tool and a new medium.
Did authors who used typewriters rail against the new word processor? What about the editor that checked for grammar and spelling? Did they try to burn down spell and grammar checks in microsoft word? Is the art any less art if it has been created with a tool that allows for more ease than has been available in the past? Should we boycott the bakers that do not mill their own wheat? Or does the sourdough bread belong to the wild yeast cultures, and so owed recompense for all we have taken from it?
The argument can be made until the universe burns out, or we can accept that art is made by sentient life, and any tool used in the production of it cannot be considered an owner of that art, and if the only sentient lifeform involved in the creation of that art wishes to claim it as their own, then they should have the right to protections for their work.
you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.
No, you can neither copyright a recipe nor the food or drink it produces.
Food and drink is only protected by trademark law. You are free to make a burger that tastes exactly like a Big Mac, you simply can't call it a Big Mac.
And you can take a photo of some natural rock formations on black and white film stock, but you can't take Ansel Adam's photo of natural rock formations on black and white film stock. This is what the artist is suing for. He wants to claim ownership of his work, which I believe falls under copyright law, just like Ansel Adam's photos.
Ansel Adams has a copyright because of the creative control he had over his photos, such as in lighting, perspective and framing.
Artists generally cannot copyright AI output because they do not have a comparable degree of creative control. Giving prompts to an AI is not sufficient.
Ok, I controlled the lighting, perspective and framing. Can I copyright now?
If this is an actual photograph, then you can copyright the lighting, perspective, and framing of the photo. Anyone can make an image with the same model though.
If this is AI generated and you directed the AI to change the lighting and perspective, then no you still can't copyright any of it. Giving direction is not the same as having control.
Ok, lets do it with some of my actual work, then. One of these is the original photo I took, another is black and white, and the other has had some color added. When I took the original photo, I controlled everything about it. However, the edits were done in lightroom, where I asked the computer to change the color and to desaturate. I didn't go in, pixel by pixel, and change things. I didn't shoot on different film. I used a tool. Do I still own those photos? It seems like we are struggling over what is and isn't a tool, and whether tool assisted art is still art.
In your edited photos, a judge can point to any part of the photo and ask, "In this particular part of the photo, why is there this particular hue?" And you can answer, "Because I desaturated it or I adjusted the tone curve or I snapped the photo when I saw that hue in the viewfinder". There is no possibility that 100% desaturation can result in any color other than grayscale. There is no possibility that a desaturation slider will sharpen the image instead of desaturating it. You know what will happen every time you make an edit. That's creative control.
In an AI generated photo, at some point the prompter will answer "Because that's what the AI produced after my prompt, and I accepted the result". In other words, in some parts of the image the prompter could not predict what the result of a prompt would be, but they approved of the result after the fact. It's entirely possible that a prompter could get unexpected results from their prompt. That's direction, not creative control.
I’m not Anti AI. I have fun making stuff with it.
But the copyright laws as they are don’t apply. And if they did it would open a can of worms legally.
The recipe can’t be copyrighted. The cake produced can’t be copyrighted. But the packaging or style of a cake with your brand could be trademarked which is a different legal ball of wax entirely
What is the limit to the number of words that can be copyrighted?
For sale,
baby shoes,
never worn.
Can I claim that as my own? Is six words the lowest? Four? Where is the line? What makes it art vs. instruction? If Hemmingway had said those words to his publicist and asked that they be published instead of writing them himself, would he still own them?
And therein lies the rub. When it comes to copyright every infringement case has to be adjudicated by a judge (assuming they have filed a copyright)
I can definitely recommend Leonard French’s (a copyright lawyer) channel Lawful Masses on YouTube and Twitch for a more in-depth breakdown of copyright cases. How it works, the rights that copyright holders have, etc.
It has to be fixed in a tangible medium.
Hard disks are pretty tangible.
But if they are not as you suggest, does this mean all digital photography is not copyright able?
So many arguments as to why this shouldn’t be subject to copyright seem to fail simple questions of logic.
If the output of ML isn’t copyright able, then the inputs should not be subject to copyright either. The whole system is broken and only serves to enrich the few at the expense of the many. It doesn’t protect the small time artists, only the exceptionally wealthy ones who earn more than the typical worker will make in many lifetimes.
Here’s more if you’d like to read about it.
https://www.copyright.gov/engage/visual-artists/
I remember when the DMCA was introduced and all the various issues arising from what and isn’t copyrightable when it comes to digital vs physical copies, etc.
Again I’d like to recommend Leonard French (Lawful Masse) on YouTube and Twitch for a copyright lawyers breakdown of these kinds of issues.
If I use a combination of words to commission an artist to paint a picture, I don't own the copyright on that picture.
If it's a commission, you might. Depends on the how the contract is worded.
Okay, let's see the contract in this AI case that grants this man the copyright.
The contract is set by the company, let's say Midjourney, which passes ownership to the person who generate the "art." What needs to be defined is if ai generated art is art? So far, no one seems to have a definite answer. I come down on the side of yes, but there are a lot of others that say no.
Which company passes the ownership to the person in its contract? Midjourney does not, I just looked:
By using the Services, You grant to Midjourney, its affiliates, successors, and assigns a perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the Content You input into the Services, as well as any Assets produced by You through the Service. This license survives termination of this Agreement by any party, for any reason.
https://docs.midjourney.com/docs/terms-of-service
They make it clear that you do not own the copyright on the images you create. Did the artist suing the copyright office use this company?
irrevocable copyright license
A licence isn't a copyright, though?
https://help.midjourney.com/en/articles/8150363-can-i-use-my-images-commercially
reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the Content You input into the Services, as well as any Assets produced by You through the Service.
In no way does Midjourney own the image, they only have the ability to "reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute".
That has absolutely nothing to do with who owns the copyright. I already quoted to you from their own ToS and linked to it.
It has everything to do with what the copyright gives them the right to do, which is: reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute". They cannot claim ownership of the art. If you were to create art that is illegal, they do not own it and are not responsible for that.
And since you want to quote the TOS, here is the first part which you ignored:
You own all Assets You create with the Services to the fullest extent possible under applicable law. There are some exceptions:
Your ownership is subject to any obligations imposed by this Agreement and the rights of any third-parties.
If you are a company or any employee of a company with more than $1,000,000 USD a year in revenue, you must be subscribed to a “Pro” or “Mega” plan to own Your Assets.
If you upscale the images of others, these images remain owned by the original creators.
The article makes that perfectly clear.
The article makes it perfectly clear that he used Midjourney.
Midjourney makes it perfectly clear that he does not own the copyright to anything he uses Midjourney for.
I'm not sure what your point is.
You can copyright a combination of words, though, and it was his unique combination that created the art
so its literature, then?
The artist doesn’t copyright the palette, and the shop that sold the pigments holds no ownership over the painting.
Sure, the artist doesn't copyright a palette, or the shop does not hold ownership of pigments. But Companies do patent pigments.
If the art is created with paint, pixels, or phrase, the final product belongs to the artist, and so should be protected by law for them.
If you commission an Art piece, with a detailed description of what it should display. The artist comes back to you with a draft, you tell them to adjust here and there, and you finally after several rounds of drafting got the commissioned art piece. Did you draw it?
Thats what LLMs do and nothing else.
Is the diction of the buyer to the artist in the final paragraph of your argument make the painting a novel? You have you answer.
Yes, companies can copyright specific pigments, but that doesn't give them ownership over the paintings created by them, only protect for their own IP vis-à-vis the pigments. In the same way, the company that created the LLM may protect their work but hold no ownership on the art it produces.
Who drew the art is of no import when the artist isn't a sentient lifeform. By your definition, a photographer cannot own a picture because the camera captured it.
Yes, companies can copyright specific pigments
No, you cannot copyright a pigment. Companies can use colors as trademarks, but that just means that competitors can't use the color in a way that would confuse customers. For example, you can't start a courier service with vans that are the same color as UPS vans, because that might confuse customers.
You are still free to use that color in ways that are unrelated to UPS, for instance as an eye shadow.
Patents are another matter entirely. You don't patent the color, but you might be able to patent the media (e.g. a new formula for quick drying paint).
In the same way, the company that created the LLM may protect their work
What does the company protect here? The system, or the model? Which the latter being ill-gotten by scraping already copyrighted content?
Who drew the art is of no import when the artist isn't a sentient lifeform
It was an allegory. The supposed artist is the commissioner and the LLM being the artist. And since you can't copyright something you didn't made, well tough luck getting copyright on AI slop.
By your definition, a photographer cannot own a picture because the camera captured it.
No, because as a photographer you hold the tool in your hand. You can adjust everything, even the subject. And its all in your own control and it takes your skill in managing it to shoot the perfect photo.
If we would take your interpretation of my definition, then nobody can own anything since they always have to use a tool to create something.
It’s a good analogy but one thing to consider is that the artist is the copyright holder.
The company that directed it only has the copyright either by explicit contract transferring rights or because it’s a work for hire where the employee’s copyright work is “automatically” transferred to their employer.
Some interesting case law on that from Disney artists, comic book authors, etc
What does the company protect here? The system, or the model? Which the latter being ill-gotten by scraping already copyrighted content?
That depends on what is proprietary to the company. If they have created the system and the model, then both.
The supposed artist is the commissioner and the LLM being the artist.
That is a highly subjective point of view. Let's look at music. If a musician loses their arms and can no longer play an instrument, but instead dictates the chords to someone else to play, who is the artist? Who can claim ownership of the piece?
No, because as a photographer you hold the tool in your hand. You can adjust everything, even the subject. And its all in your own control and it takes your skill in managing it to shoot the perfect photo.
Spoken like someone who has never used an LLM before and thinks it magically produces exactly what you want on the first time, every time.
If we would take your interpretation of my definition, then nobody can own anything since they always have to use a tool to create something.
No, that's everyone else's argument. Mine is that the tool is the LLM, and that when art is created with it, it should be open to copyright.
Let's look at music. If a musician loses their arms and can no longer play an instrument, but instead dictates the chords to someone else to play, who is the artist? Who can claim ownership of the piece?
Then that musician becomes the composer who can copyright the sheet music. The one who plays the chords becomes the performing artist and can copyright the performance.
Spoken like someone who has never used an LLM before and thinks it magically produces exactly what you want on the first time, every time.
I have used LLMs extensively, several versions and types. I know how that shit works. And no I do not think that its results are deterministic and accurate.
Mine is that the tool is the LLM, and that when art is created with it, it should be open to copyright.
The LLM is the "artist" as it produces the image. And you can't claim copyright for someone else.
Then that musician becomes the composer who can copyright the sheet music. The one who plays the chords becomes the performing artist and can copyright the performance.
That is if they actually composed the music. In the case of someone saying I want a song that is ABAG, and they ask that it be written down because they cannot write it down themselves, the person who writes down ABAG isn't the composer, they are an extension of the pen that writes the note--they have become a tool.
The LLM is the “artist” as it produces the image. And you can’t claim copyright for someone else.
The LLM gives you what you ask for based on a random seed and keywords in your prompt. It has no will of it's own. It cannot exert its will over the image. It simply outputs. As I've said in another part of this thread, if I tie a bucket of paint with hole to a rope and sling the bucket of paint over a canvas, does the bucket of paint get credit for being the artist? Does the rope? No. They had no will. Even though my input was minimal, and the results most assuredly random, I am still the artist by all accounts, and as such may copyright my random sprays of paint should I deem them worthy. My intent has created the art--my desire. The machine cannot create because it cannot exert its will. It simply does what it is asked and outputs.
In the case of someone saying I want a song that is ABAG, and they ask that it be written down because they cannot write it down themselves
Then we are again in a commissioner situation. The guy who commissioned a composer to write them a song according to their specifications.
In regards to your bucket of paint.
That's an art installation which you can copyright. The resulting artwork on the canvas can't be.
the final product belongs to the artist, and so should be protected by law for them.
Then the real artist, the AI, should request the copyright. And sue the charlatan that tried to take its work and claim all credit.
And the camera owns the photograph, and Photoshop owns the digital image, and Final Cut Pro owns the film? The tool owns nothing. The tool is incapable of ownership
Thus the value of the art is reduced to an idea and the human labor invested. The labor is practically zero and an idea is worth nothing. That means there is nothing worthwhile to copyright
Wow.
And how do you define a tool?
Couldn’t you take a picture of the leaves and copyright that?
Yes, you could. BTW I just took a screenshot of your comment so it's mine to copyright.
I mean, literally yes, though?
Like, it's not meaningful at all, but yes, it's copyrightable.
Exactly my point, copyright law is ridiculous.
If I made an image in photoshop, the computer made it, I just directed it.
How is AI different?
And that's why I make art completely without instruction or man made tools. I actually independently developed cellphones and English purely to dunk on people on the internet.
Funny but that is kind of my point, where is the line and why?
What are you talking about? The computer didn't make it. That's like saying a paintbrush made a painting.
That is not even close to AI image generation.
We could explain it to you, but you're not interested in understanding.
I'm being honest, I get that they are not the same, I just don't understand why the line is drawn with AI, Why wasn't it drawn with photoshop?
They tried to draw the lines with Photoshop, and with cameras, and with pre-mixed pigments, and probably more.
It's been used many times before, but I like the analogy of ordering food. If I go to a restaurant and order risotto, I haven't made the dish, I've only consumed it. I want you to focus on that word "consume", it's important here.
Another idea I've seen recently that I like was a summed post something like this:
- People use AI to write a 4,000 word article from a 15 word idea (introduction of noise)
- Others then use AI to summarize the 4,000 word article into a 15 word blurb (introduction of more noise)
I know I'm using a lot of analogies here; from food to writing and now the visual medium - but stick with me. Completely sidestepping any lofty notions of soul or humanity, let's look strictly at what's being communicated in a visual piece of art generated by AI. It's an idea, one containing neither your specific style (the creative process) or vision (the final product), though you may feel you get a close approximation after several iterations and a detailed/complex enough prompt. If you wanted to convey the idea of "eagle perched in a tree", you've already done so with that phrase (or prompt in this respect). By providing an AI-generated image, you've narrowed my own ability to interpret down into the AI-generated noise now taking up space between us.
The reason you'd use AI-generated art is because you need to fill space, like the thumbnail to go with an article. An empty space to dump things into. While I can't ever claim enough authority to define what exactly art is and is not (nobody can), I can say with absolute certainty that no matter how far the tech evolves, to me PERSONALLY, AI will only ever generate content, not art. There is already more art in the world than I could possibly consume in a hundred lifetimes, I neither want nor need this garbage.
I understand your point, but I disagree.
As someone who has a very vivid imagination and absolutely no artistic skills, and who doesn't enjoy drawing, i find that being able to produce my ideas through words is amazing.
For me, AI art is a tool that enables me to express ideas that would otherwise never be expressed.
I don't consider a few lines of prompt of the top of your head art, but if someone sat down, revised, tweaked and put effort and imagination into it, isn't that art? Would it be more of an art piece if they just published the text instead of the generated image?
If I go to a restaurant and order risotto, I haven't made the dish, I've only consumed it. I want you to focus on that word "consume", it's important here.
If I buy a bread at the bakery, ham and cheese in the grocery store, and make me a sandwich, who's the creator?