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AI

US Copyright Office Denies Protection for Another AI-Created Image (reuters.com) 164

Posted by msmash from the no-mercy dept.
The U.S. Copyright Office has again rejected copyright protection for art created using artificial intelligence, denying a request by artist Jason M. Allen for a copyright covering an award-winning image he created with the generative AI system Midjourney. From a report: The office said on Tuesday that Allen's science-fiction themed image "Theatre D'opera Spatial" was not entitled to copyright protection because it was not the product of human authorship. The Copyright Office in February rescinded copyrights for images that artist Kris Kashtanova created using Midjourney for a graphic novel called "Zarya of the Dawn," dismissing the argument that the images showed Kashtanova's own creative expression.

It has also rejected a copyright for an image that computer scientist Stephen Thaler said his AI system created autonomously. Allen said on Wednesday that the office's decision on his work was expected, but he was "certain we will win in the end." "If this stands, it is going to create more problems than it solves," Allen said. "This is going to create new and creative problems for the copyright office in ways we can't even speculate yet."
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US Copyright Office Denies Protection for Another AI-Created Image More

US Copyright Office Denies Protection for Another AI-Created Image

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  • To bolster their claims, artists will use AI to inspire them, but add sufficient non-AI content to ensure they won't get rejected by the copyright office.

    Good luck getting them to publish the non-copyright-able AI-generated inspirations.

    • Re:Prepare for "AI-inspired" art (Score:4, Informative)

      by Shaitan ( 22585 ) on Monday September 11, 2023 @01:29PM (#63839702)

      Alternatively, just don't list the tools you use to make your art as if it were a creator.

      • Alternatively, just don't list the tools you use to make your art as if it were a creator.

        This will work only if you don't get caught. Otherwise, it would be considered fraud, tampering with a government document i.e. the application for copyright registration, etc. etc.

        Granted, the odds of getting caught are low, at least for now.

        BUT... you don't know if a family member or co-worker or collaborator who "knows your secret" may turn on you years later.

        We also don't know if a future technology will be able to "suss out" at least some things that were 100% AI-generated.

        Bottom line: Your suggestio

        • Re: (Score:2)

          by Shaitan ( 22585 )

          "This will work only if you don't get caught. Otherwise, it would be considered fraud, tampering with a government document i.e. the application for copyright registration, etc. etc."

          It is no more fraud than not listing a brush and paint when filing the copyright on a painting. The AI does not add any sort of creative element, therefore it is not a creator and should not be listed as one.

          "Bottom line: Your suggestion might work, but it is not without legal risks."

          The rest of your post erroneously applies so

        • "or co-worker or collaborator"

          I thought with return to work we were supposed to be doing more collaboration.

        • LOL. The amount of art and law pseudoexpertise I've seen from the tech crowd in the time since midjourney was released is absolutely fucking flabbergasting. One big huge Dunning-Krueger circus.

  • Very flawed determination (Score:3, Insightful)

    by vakuona ( 788200 ) on Monday September 11, 2023 @01:20PM (#63839668)

    I think this is a very flawed finding that will be ultimately overturned (if challenged). What is the difference between taking a photograph of something completely natural (and therefore the photographer only observed) and a Midjourney produced image where the artist actually directs a computer to produce an image.

    If photos are copyright-able, then so should Midjourney created images.

    • Re: (Score:2, Insightful)

      by Mononymous ( 6156676 )

      Photographs are composed by the photographer. They make choices about framing, lighting, focus, where and when to shoot.
      This requires talent, expertise, and effort.
      You can't say the same for telling a computer to make a picture.

      • Yes you absolutely can say the same about using a computer to do the work. The fact that someone else might have created the code and trained the AI does not change the fact that someone competent had to use the tool to create the art. He didnâ(TM)t just grab an image that the computer spat out. He composed it, using commands to Midjourney.

      • You can't say the same for telling a computer to make a picture.

        Not for a single picture, but I know serious, er, "AI designers" who take a day or more to craft the "perfect" AI-generated image.

        The full process involves testing dozens of variations of the input, then once the system begins generating images close to what the person wants, generating hundreds of them, evaluating one by one, selecting the best ones, providing them back to the system, crafting new inputs to generate variations atop those, in several distinct batches using distinct specific values, several

        • I appreciate the effort in setting up and curating AI work. But the moment an image gets published online, anyone can use it for reference and derive styles from it. It's not possible to own it, just like you can't own a meme.

      • > Photographs are composed by the photographer. They make choices about framing, lighting, focus, where and when to shoot. This requires talent, expertise, and effort. You can't say the same for telling a computer to make a picture.

        What you said reads like someone told a photographer "all you have to do is push a button on the camera, that's not creative!" Now imagine explaining why that's wrong to someone who doesn't even know what the f-stop is.

        Because there actually is a lot of skill that goes into c

      • "You can't say the same for telling a computer to make a picture."

        Tell us you've never tried without telling us.

        You can get surprisingly good results with just a single prompt, but most of the AI generated images you can't immediately tell are such were the result of over a dozen prompts, inpainting and outpainting, and so on.

        Even the crafting of a single prompt may take significant time and multiple attempts, and should qualify as creative effort in its own right. Practically any snapshot qualifies for cop

        • inpainting and outpainting, and so on

          If there's any inpainting and/or outpainting, then you won't claim the image is made in Midjourney by an AI, but is made in Photoshop (or such) by you.

      • "You can't say the same for telling a computer to make a picture."

        Isn't that what your doing when you press the button on a camera?

        One moment there isn't a picture, the next you press a button on a camera, a keyboard, or elsewhere and a picture now exists due to your effort. Sounds like its your's to me.

        • The photographer decided what they wanted the picture to look like. They saw the image before pressing the button.
          The AI-generated image came as a complete surprise to the person who typed in the prompt. They had seen none of it previously.

          • You've obviously not spent even a superficial amount of time knowing how serious users of generative AI actually use it.

    • Re: (Score:3, Interesting)

      by account_deleted ( 4530225 )
      Comment removed based on user account deletion

      • Who owns the copyright for something AI generated? [...] The team that created the algorithms and code driving the AI?

        Isn't that a bit like asking whether or not the creator of the camera has any claim over the image that was created by it?

        Were people asking these same questions when the first cameras were invented?

        I think that the person to gave the prompt to the computer owns the product

      • Re:Very flawed determination (Score:4, Interesting)

        by Shaitan ( 22585 ) on Monday September 11, 2023 @01:40PM (#63839760)

        "A photograph is easy, I took it, I own the copyright on it."

        That depends on WHAT you took a picture of. If I paid you to take that photo then it is a "work for hire" and I own the copyright, not you. If you took a picture of my painting then you do own the copyright but it is also a derivative encumbered by my copyright and the former means you'll need permission to exercise the rights of the latter. This is no different than if I write a song and you do a performance, both the performance and the song have a copyright and the performance is derivative.

        The digital image contains unique expression and I think the copyright office got it wrong here but I also think exercising the copyright [distribution of copies] requires permission from those who own the copyright on the input.

        • Comment removed based on user account deletion

          • Re: (Score:2)

            by MobyDisk ( 75490 )

            That's a pretty basic idea you'd never be able to copyright.

            Why? If a human wrote that it would be copyrightable.

            • Comment removed based on user account deletion

              • Re: (Score:2)

                by MobyDisk ( 75490 )

                I think I misunderstood your comment. Yes, the *idea* isn't copyrightable, but the story that comes out is. It is copyrightable because in the same way that the output of other algorithms is copyrightable. If I draw a picture, then run a filter over it, the resulting output is copyrightable. The algorithm transformed the input, but the copyright remains.

                The only thing that makes AI interesting is that it was trained on a broad selection of already-copyrighted works. So the input is copyrighted by other

              • The character (Spot) and settings (Enterprise and UFP) are also copyrightable.

                Are you sure the names Enterprise and UFP are protected by copyright and not trademark? And Spot, I am pretty sure is not protected by anything, Spock may be.

          • So what if it contains "a non zero amount of derivation from their copyrighted works". Having a right over copying works doesn't extend into a right over gradients or analysis derived from said works. You can count how many times an author used the word "house" in a book without violating copyright. It's an analysis. For example the SD model has about the same number of GB as the number of training examples, it can't save all those images in the model, there is no space.

        • >If I paid you to take that photo then it is a "work for hire" and I own the copyright, not you.

          Not unless it's in the contract like that. And then you pay the professional photographer usually at least triple their usual going rate so you retain copyright instead of having a perpetual license to use the images in restricted cases. Don't like that deal? Then go buy a DSLR and do it yourself. Then you WILL have the copyright.

          >The digital image contains unique expression and I think the copyright office

          • "Not unless it's in the contract like that."

            Its always about what the contract says, IF there is one. It could even say the owner is a 3rd party.
            And its moot about paying triple the rate. Not even sure why you brought that up. You may also have to pay for the photographer's lunch if that was agreed on. Should we discuss the menu options now?

      • No its the same and why copyrights are fundamentally flawed device, if you took a picture of my house, I maintained it, bought it, the team of people created the camera, who built on other peoples work and software you used was created by someone else. You lived in a society that taught you, fed you, gave you inspiration.

        Why are you so special that just because you where the last person in the link?

        Sure you should get credit for doing the last thing in the chain, and if people want to pay you to do that thi

        • Re: (Score:2)

          by MobyDisk ( 75490 )

          That's just like every other industry, from builders, to software engineers, I don't remember getting a percentage of the sales of the products I develop for 75 years after my death.

          It sounds like you don't own the copyright on any products.

          When you create a piece of software and copyright it, then you can license that for sale and negotiate for a percentage of sales for 75 years after your death. Lots of software that works that way. If you create something as a "work for hire" then you don't own the copyright in that case.

          This is consistent for music, photography, paintings, and software.

          • "It sounds like you don't own the copyright on any products."

            He/she owns the copyright for the part you quoted.

            But, oh no. You own the copyright for the part I quoted. If he were to quote me, we'd be in a recursive copyright loop and the universe may explode. For the love of god, please don't quote me ewibble. The future of the universe is at stake. Mmm, steak.

      • Re: (Score:3)

        by MobyDisk ( 75490 )

        Many of the questions being asked don't really have to do with AI:

        Who owns the copyright for something AI generated? The dude that gave the system the input?

        Yes. That's is how we treat it with other tools and algorithms. It applies to things like: a crayon, a Spirograph, Photoshop, or C# code. AI should be no different. ***

        The team that created the algorithms and code driving the AI?

        No, copyright is not assigned to the creator of the tool unless the tool was also created by the dude that gave the system the input. Like Machinima [wikipedia.org] or the demo scene [wikipedia.org].

        All the authors who came before whose material was ingested (frequently without consent) into the AI to feed its generative model? ***

        THAT is the key question here. Who gave the system the input, when the system scrapes the entire internet?

        • I think the real issue here is that copyright is outdated and should be abolished. Why? It makes no sense to copyright something when I can generate 20 variations with the push of a button, and make them only sufficiently different to pass. Or I can ask for a style change, or modified composition just as easily. You can't own styles or ideas.

      • "A photograph is easy, I took it, I own the copyright on it."

        Did you invent that camera? Did you create it? Did you decide how it handles filtering and the other 8 million options it does internally? Did you build the camera? Do you even understand how it works?

      • And if you take a picture of an uncopyrightable AI-generated image?

      • The dude that gave the system the input?

        Yes. This isn't a difficult question. The question is who had the creative direction. Training a model isn't a creative direction any more than Davinci owning copyright to all Renaissance art.

        A photograph is easy, I took it

        Did you? Let's apply your logic. Who wrote and designed the debayer filter? Who provided the colour calibration files for your sensor? Is that lens flare a function of your creative taste or a design feature of the engineer of the lens? That's before we talk about HDR effects, auto lens calibration correction that is r

    • Your logic is focused on the wrong thing.

      Copyright is a product of the law of the land. It specifically protects the ability to use, claim credit, or generate commercial value over a form of human expression to the human that made that expression.

      Law is a product of a society of humans, and humans only. The law only protects the rights of humans to operate in human society. AI is not human, and has no rights, privileges, or protections under human law because it's not human.

      The courts have alre

      • The human expression is precisely the prompts given to the AI to produce the image. The AI did not just produce an image by itself that the copyright filer is then claiming. He directed it - very precisely too 624 text prompts in all. There is also almost no way to replicate what he has done without specific application of his prompts and other edits. This is a creative work - no question. It should be entitled to copyright protection in exactly the same way as a photograph.

        • Re: Very flawed determination (Score:4, Informative)

          by Whateverthisis ( 7004192 ) on Monday September 11, 2023 @02:33PM (#63839930)

          This is a creative work - no question. It should be entitled to copyright protection in exactly the same way as a photograph.

          In fact, there is a question. In your opinion there is no question. But while you are entitled to your opinion, your opinion has no bearing on the law. And caselaw has already settled that that simply isn't enough. The Monkey selfie case is a good example. Slater did all the framing, he did all the lighting, he set everything up, but the monkey snapped the photo. Right there the monkey initiated creation, and the monkey has no legal rights as a non-human and therefore cannot assign rights to a human if they never existed.

          624 text prompts are less creative, in my opinion, than what Slater did with the Monkey selfie. But my opinion also has no bearing on caselaw. What settles it is that the AI did the artistic creation, he just set the conditions and trained the AI to do the work, just as Slater did with the monkeys. But the AI did the creation, and as the AI has no rights under the law, it never created a copyright protection and therefore could not assign copyright protections.

          The question is legal process and the rights of non-human actors under the law, of which there aren't any.

          • Just to put some maths on it, if we imagine the 624 prompts to be binary (they clearly arenâ(TM)t) then what we would have is 2^624 possibilities which is approximately 7*10^187 possibilities. To put that number in context - that is more possibilities than there are atoms in the known universe (up to approx 10^82), and represents a lower bound on the number of possibilities. This person has used Midjourney to produce exactly one image that cannot be reproduced by chance - it is impossible (almost surel

            • While the logic to your argument is reasonably sound, it fails at one simple test: it isn't the logic used by the law. The law uses that the creation of art requires the choice of a human. Notably it requires something, and yes it is a term that is very difficult to define and yet the law has tried to do so, but that term is spark [wikipedia.org], and it comes from a 1991 court case Feist Publications v. Rural Telephone over copyright over a phonebook.

              However, it's better defined as the Threshold for Originality. In

              • I donâ(TM)t think the Wikipedia article that you linked to says what you possibly think it does.

                It is quite clear, for the USA at least, that provided that there is direction by a human, then a work can be considered to be copyrightable.

                The copyright office is grappling with the issue of tools such as Midjourney making creation easier. However, in much the same way that photographs can be and are copyrighted, so will works created using AI.

                • I only quote and link Wikipedia because in this case this is something Wikipedia is actually pretty good at. The Law is clear. The caselaw is already settled. A monkey has way more real consciousness and agency than an AI algorithm, and the monkey was ruled to have no rights whatsoever to copyright it's images, and by extension neither did the photographer who set the whole thing up. Arm-chair lawyers and AI enthusiasts can argue logical points all the want, but the law is based on precedent and is very

      • A camera is not a human yet the camera is the thing that actually rendered the image. Yet the human gets all the credit.

        The "AI" in this case is equivalent to a camera.

        Unless you painted the picture, you didn't actually create it, the camera did. What the photographer did was to make all the choices about lighting, framing and a hundred other things.

        At some point prompt writing will be recognized as an art form just like photography is now.

        • Re:Very flawed determination (Score:4, Informative)

          by Whateverthisis ( 7004192 ) on Monday September 11, 2023 @02:27PM (#63839910)
          They're not comparable [copyright.gov]. This has been settled in caselaw [loc.gov].

          1) Baker v. Selden [justia.com] set that systems cannot be copyrighted, but exact expressions can.

          2) Burrow-Giles Lithographic Company v. Sarony [justia.com] set that the human photographer chooses the framing, the angle, the lighting, all to create an image that expresses a specific emotive response. Thus the camera does not confer copyright, but the human choice of details create an image that expresses a human thought.

          AI is a system. It cannot be copyrighted, which is a weak but somewhat relevant topic. But more importantly, the Sarony case set the idea that you can take two pictures of the exact same thing from different angles and framing and evoke a very different emotive response to the picture, thus the choice of framing and details are actually human input and copyrightable. AI does this work for the human. It is not copyrightable.

          • You seem to be proving my point.

            The camera and the AI are equivalent in that they are just a system or tool that the human operates.

            My point is that the human should be the owner of the copyright. The fact that it was made by an AI is irrelevant (in my opinion).

            • It doesn't prove the point. The Sarony case proved that a human chose the aesthetic details in the photograph, and thus the human initiated the artistic expression. The camera in a photographer's hand's is no more than a paintbrush expressing what a human thinks.

              The common example is a surveillance camera. Something caught on a surveillance camera is not copyrightable, because no human had a choice in what was selected to enter the frame, the camera just happened to be there and catch something. The w

      • Ok Mr Copyright Professor, I hope you didn't just type that on a predictive keyboard or you're in trouble.

    • Re:Very flawed determination (Score:4, Insightful)

      by Fallen Kell ( 165468 ) on Monday September 11, 2023 @02:36PM (#63839946)

      What is the difference between taking a photograph of something completely natural (and therefore the photographer only observed) and a Midjourney produced image where the artist actually directs a computer to produce an image.

      The difference for the copyrightable photo is that a human took the photo after determining the subject matter, lighting, time, temperature, conditions and composition created a work of art.

      Also, ask the Dave Slater, a wildlife photographer who's camera was briefly taken by a bonobo which then snapped a selfie of itself grinning into the camera and was denied copyright protection of the work. Or ask the elephant owners who tried to copyright the artwork that the elephants painted.... The copyright bills are all clearly worded, that it needs to be created by a human. You can contend that especially in the case of the elephant where it paints a picture at the request of the human handlers is no different than an AI algorithm doing the same thing at the request of the human. If the human made it him/herself, it would be copyrightable, but if they didn't, it isn't.

      Sure you can go on and on about using tools and technology to help develop new art or generate a better result (such as the differences that something like an airbrush allowed vs traditional paint or using photo editors to remove red eye, or make people look "more fit", etc...). The blurry line seems to be crossed when the human isn't the one directly creating the work but instead letting an algorithm do it for them. This is the same issue as has been discussed in book authorship and what is and isn't copyrightable (i.e. fact data is not copyrightable, numbers are not copyrightable, math is not copyrightable). As a result a mathematical algorithm creating an output, that output is not copyrightable.

      • > The difference for the copyrightable photo is that a human took the photo after determining the subject matter, lighting, time, temperature, conditions and composition created a work of art.

        The difference is that the photographer used his feet to get to the place, and the prompter used his fingers to type the prompt in.

    • Re: (Score:2)

      by Tyr07 ( 8900565 )

      All this is, is people wanting an AI to generate thousands of images, have them own the copyright to them all, copyright anything that looks close to it generated by another AI, work very little and force everyone to pay royalties for something that generated images after being fed copyrighted works.

      They just want a decopyrighter, it just takes existing works, comes up with something unique out of it, and calls it their own. Why don't you base your art using an AI strictly trained on art and images etc, tha

  • Take this as a precedent? (Score:5, Informative)

    by bradley13 ( 1118935 ) on Monday September 11, 2023 @01:35PM (#63839736) Homepage

    Could we take denial of copyright protection as a precedent, and start denying it for human-created stuff too? Like bands that claim copyright on riffs? Companies that claim copyright on ideas, rather than expressions of ideas? Just like patents, copyright is being seriously abused, not even mentioning the ridiculous length of the protection.

    The office also rejected Allen's argument that denying copyrights for AI-created material leaves a "void of ownership troubling to creators.

    Why is a "void of ownership" any sort of problem? It's called "public domain".

    • Re: (Score:2)

      by Holi ( 250190 )

      Copyright requires a human creator. Any changes to that would require Congress. I will agree that copyright is abused far beyond it's stated goal "To promote the progress of science and useful arts".

      • Define "creator". Is an artist who uses software to generate images of Mandelbrot fractals allowed to claim copyright? Because in both cases, generative AI and generative fractal software just create images using procedural algorithms.

  • You still can create derivative content (Score:3, Interesting)

    by fabiomb ( 5315421 ) on Monday September 11, 2023 @01:53PM (#63839800)
    If you generate the picture with MidJourney but dont tell anyone about it? Or... if you take the MidJourney picture and EDIT over it, print it, paint some lines and colors, its a derivative content and ITS COPYRIGHTABLE? I think thats going to be the new move, just print it, draw some lines over the AI creation and then you have a complete new art with human intervention, if you can draw a few lines like Basquiat over your MJ/SD creation you can copyright it.

  • This is how copyright's death begins (Score:3)

    by zuki ( 845560 ) on Monday September 11, 2023 @02:47PM (#63839972) Journal
    By taking this approach (which I honestly can't disagree with but for slightly different reasons), one possible scenario is that the copyright office might well be opening the door for generative AI to slowly start its dominance over creative arts once it's learned and assimilated the billions of pieces of human artwork it's based on. I'm not sure whether copyright owners have really thought through what happens when AI bots can generate new and unique works 'on-demand' 24 hours a day. But at this stage copyright won't matter anymore because this content will never be repeated.

    Not to say that such engines will be able to compete with the quality and originality of human works, and the fact that we like to come back to art which evoke memories of past times, significant life events or some form of nostalgia; but if anything, recent history tells us that the average crap that generative AI engine can churn out will be deemed 'good enough' and acceptable for the masses. Case in point, the kind of dross formulaic and rehashed drivel that already passes for club music and EDM these days, which ravers with glowsticks don't ever seem to mind at big festivals when played by performers or DJ figureheads with glittery outfits, flashy dance moves and outrageous hairdos.

    One could wager that few are gonna care about the 10% with demanding taste who will only settle for human-created art. And in the case of the remaining 90%, copyright won't be necessary because this stuff will be generated as we listen to it or look at it and never repeat again.

    Even though it's been done very quietly, it's rumored that the major record labels have been very quietly investing in such generative AI systems. They may appear to generally act dumb, but they're far from stupid and can smell where the wind is blowing.

  • ...not more
    Stuff created by robots should not be protected by copyright

  • If you can stand in the same place as someone else, take a picture with your own camera and settings, and get basically the same image, you can still copyright that image as your own. Even if someone else stood there and took a picture as well.

    AI on the other hand, you can feed it input, you can't copyright that like you can't copyright the location, and the AI will generate the exact same image. Ergo, this one is mine, can't tell the difference? Too bad.

  • What does this precedent do for movies created by 2D or 3D computer graphics animation software such as Blender?

    People are already starting to use AI to create images and effects [engadget.com] for Blender. Stability AI has created a Blender plugin [stability.ai].

    A human scripts it and, at least for now, creates the models then Blender creates the movie but make it easy & a lot of people are going to use AI for a lot of the donkey-work. Surely, using a computer tool to do the donkey work for the creative person is just a natural ad

  • Does The Policeman's Beard Is Half Constructed [wikipedia.org] have a valid copyright?

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