Comment Re:Cue all the people acting shocked about this... (Score 4, Interesting) 41
As for why I think the ruling was bad: their argument was that because the person doesn't control the exact details of the composition of the work, than the basic work (before postprocessing or selection) can't be copyrighted. But that exact same thing applies to photography, outside of studio conditions. Ansel Adams wasn't out there going, "Okay, put a 20 meter oak over there, a 50 meter spruce over there, shape that mountain ridge a bit steeper, put a cliff on that side, cover the whole thing with snow... now add a rainbow to the sky... okay, cue the geese!" He was searching the search space for something to match a general vision - or just taking advantage of happenstance findings. And sure, a photographer has many options at their hands in terms of their camera and its settings, but if you think that's a lot, try messing around with AUTOMATIC1111 with all of its plugins some time.
The winner of Nature Photographer of the year in 2022 was Dmitry Kokh, with "House of Bears". He was stranded on a remote Russian archipelago and discovered that polar bears had moved into an abandoned weather station, and took photos of them. He didn't even plan to be there then. He certainly didn't plan on having polar bears in an abandoned weather station, and he CERTAINLY wasn't telling the bears where to stand and how to pose. Yet his work is a classic example of what the copyright office thinks should be a copyrightable work.
And the very notion that people don't control the layout with AI art is itself flawed. It was an obsolete notion even when they made their ruling - we already had img2img, instructpix2pix and controlnet. The author CAN control the layout, down to whatever level of intricate detail they choose. Unlike, say, a nature photographer. And modern models give increasing levels of control even with the prompt itself - with SD3 (unlike SD1/2 or SC) - you can do things like "A red sphere on a blue cube to the left of a green cone" . We're heading to - if not there already - where you could write a veritable short story's worth of detail to describe a scene.
I find it just plain silly that Person A could grab their cell phone and spend 2 seconds snapping a photo of whatever happens to be out their window, and that's copyrightable, but a person who spends hours searching through the latent space - let alone with ControlNet guidance (controlnet inputs can be veritable works of art in their own right) - isn't given the same credit for the amount of creative effort put into the work.
I think, rather, it's very simple: the human creative effort should be judged not on the output of the work (the work is just a transformation of the inputs), but the amount of creative effort they put into said inputs. Not just on the backend side - selection, postprocessing, etc - but on the frontend side as well. If a person just writes "a fluffy dog" and takes the first pic that comes up, obviously, that's not sufficient creative endeavour. But if a person spends hours on the frontend in order to get the sort of image they want, why shouldn't that frontend work count? Seems dumb to me.