US Copyright Office withdraws copyright for AI-generated comic artwork

Zarya images "not protected by copyright." Words and arrangement remain protected.

See full article...

 

[Honeybog]

As a thought experiment, how much AI do you thing Disney would rely on if it puts a cloud over their content?

Since this is Disney, I think they would quickly lobby Congress to pass a law allowing AI generated content to be covered under copyright, and then, for good measure, have copyright protection extended until the heat death of the universe.

 

[IncorrigibleTroll]

Does anyone know what, if anything, there is for case law on generative works in general? Say I write a program to draw a flower with turtle graphics, do I own the copyright for that image?

It's been entirely too many decades since I've played with logo and its myriad offspring, but don't you have to specify every movement and turn? That's clearly and unquestionably human authorship.

 

[fenris_uy]

I used midjourney to generate what is (to me) a stunning and compelling image, in a few minutes, and it's now the wallpaper on my phone and I love it. Do I think it should be copyrightable? Hell no! The prompt was only about eight words, I tried a few variations and then got something that clicked, and there's no way I should have any sort of control over its use (or that someone else who generated a near identical image should be able to control my use of it).

If AI generated images of this sort could be copyrighted, in my opinion it would be a field day for copyright trolls to claim ownership of vast amounts of imagery by using common text prompt combinations in an entirely mechanical way.

I want to see a significant amount of human creativity involved before copyright applies (and I realise "significant amount" is very hard to define, but hey, that's what the courts are for).

And don't see how this ruling prevents the trolls from copyrighting vast amounts of images. The office only struck down the copyright because she made it public that the images were AI generated. If she had kept that information to herself, she would had gotten the copyright on this image.

 

[ip_what]

But you do if you take a picture of that seashell in the beach. You don't even have to take the seashell home.

Then you get copyright to the picture, because you made decisions about composition. But you can’t stop anyone else from taking pictures of the shell, which you could do if you sculpted it instead of taking it off the beach.

We can get meta here and ask whether taking a picture of an AI produced artwork get copyrighted. I think the answer is probably yes! The problem is that isn’t worth much, because anyone else can also take a picture of uncopyrightable original AI art work. They just can’t take a picture of your picture of the AI art!

 

[MambaLev]

If the humans' inputs aren't significative enough to be granted copyright, are the humans' inputs also not significative enough if I want to create something that resembles a previously copyrighted material?

If I ask stable diffusion to draw Mickey Mouse, who is violating Disney copyright?

This is easy. If you publish it, you. If someone else publishes it, them.

 

[C.M. Allen]

I'm okay with this kind of decision. AI-derived media wouldn't be violating copyrights, but AI-derived 'media' would also be ineligible for copyright either. For hobbyists doing these things for the joy of the end product, they're not going to care so much about copyrights. But professional businesses will have to make that difficult choice of 'cheap AI but not owned' or 'expensive and custom, but privately owned.'

I'd say that's a fair compromise, all things considered. Or at least as fair as anyone is going to get.

 

[IncorrigibleTroll]

That makes sense to me, too. I saw Meshuggah's video for "They Move Below", done by Wizardhead, and it seems like a lot of work went into that, even though not every frame was drawn in the normal way. I would expect one or both of those entities to be able to claim copyright on it.

View: https://www.youtube.com/watch?v=c6Q1v4zRt1w

How have I not seen this before now? I love animated music videos, I love this kind of artwork, and I love Meshuggah. Thank you so much for sharing! This is very cool.

 

[Uragan]

The Copyright Office's letter repeatedly emphasizes the degree of creative control that the artist exercises over the artwork's composition. As I understand their analysis, throwing paint at a canvas involves very little creative control over the actual composition of the art (even if there may be other creative elements), so it's a relevant analogy.

Hard disagree. "Throwing paint at a canvas" is only one small aspect of the whole process. What colour to throw, where to throw the paint at what part of the canvas, how hard to throw the paint, how much to throw at any given time, etc.

 

[PandaWear]

ANY prompter's contribution to the A.I. image generation process is purely ART DIRECTION.

 

[cyberjudge]

That picture sure does look like Spider-Man's girlfriend in the movies.

 

[Silicon_Unicorn]

As an amateur writer and photographer, I strongly support this decision. My work should be my own, and I should not need to worry about someone else stealing my work, using it to build an AI, and producing copyrighted, monetizable work that enriches themselves without ever notifying me or paying me one cent. Machine learning is based on an economy of thievery, and if we allow the results of that thievery to be copyrighted, it will only further encourage it.

 

[MambaLev]

What are you talking about? Your own Wikipedia link directly contradicts your claim. A full-time employee (as ewelch describes) is not considered the author of a work for the purposes of copyright, when that work is created within the scope of their employment.

ONLY if both have an agreed term that the copyright transfers that meets the statutory requirements. Even if both parties agree that it was a work for hire, there must be a written contract stating this. Just because someone works for you fulltime is not enough.

Even my link says that generally copyright goes to the person doing the work by default UNLESS there is a specific exception. And in the work for hire case, it's that there is a contract spelling that out to meet the statutory requirements.

The opposite is true as well, I can hire someone even temporarily, to create a work and I get the copyright transfered to me.

 

[graylshaped]

The Copyright Office's letter repeatedly emphasizes the degree of creative control that the artist exercises over the artwork's composition. As I understand their analysis, throwing paint at a canvas involves very little creative control over the actual composition of the art (even if there may be other creative elements), so it's a relevant analogy.

What color paint? How large a brush? How much do you load the brush? How big a canvas?

The OP used the word "random," which Jackson Pollack denied--that he was in control of the direction and general placement of the paint he splattered.

This article walks through a variety of scenarios involving splattering paint. This has long been a topic of discussion, though the article was written in late 2020: https://houstonlawreview.org/articl...ws-of-copyright-authorship-by-jackson-pollock

 

[pseudonomous]

I don't necessarily oppose the idea of not allowing copyright for AI generated images, but what I find dissatisfying about the precedent this sets is that it if AI images are not copyrightable, then what status do the have?

If several independent people input identical prompts each using the same generative tool, which then produces identical outputs, should they all claim independent copyright on the work products? Each will be unaware of others' work products. Seems unlikely to hold on that basis. However, if they each then amend common work products rendering them unique, a good question is will they have any ownership of the derivative work.

This would be a problem. For a sufficiently long and detailed prompt, you might argue that just as you could copyright the prompt, you should be able to copyright the image generated. And if the output were both 1 to 1 and useful, then you would have to nitpick what level of description qualifies for copyright.

But I think most AI images generators include a stochastic element in the process so that you get different output for the same prompt. You can iterate to get multiple outputs from the same prompt, then pick your favorite, which enjoys some degree of "uniqueness". It's probably the AI tool will output a similar image given the same prompt, but very unlikely it will be identical.

So a user of an AI tool applies creative process twice: crafting the prompt, then cherry picking output.

What's the state of that output? As of now, I suppose the precedent set is that it's effectively public domain, so it can be used as an ingredient for a copyrightable derivative work, but not qualify as copyright itself.

Honestly, that doesn't sound awful. However, if you plunk an AI image down next to a human generated image, other than the generative process, it's not like you can necessarily tell the difference just looking at the output and that seems vaguely unsatisfying to me.

 

[Digital Dud]

There could be so much more nuance to this. Tons of "digital art" that is copyrighted relies on algorithmic generation in movies, video games, etc. Whole cities are generated by algorithms, giant forests are filled out with trees. They could be based on trained ML models or just pure mathematics. On the generative AI front, you've got models that generate art purely from prompts that often give poor results. What if you use depth2image or img2img to fill in the details with AI models, does that use make your work ineligible for copyright protection? Or you use AI to transfer the style of artwork you created into another style?

 

[wayloncovil]

This sounds like a fun test case for the Supreme Court.

If a person was to look at hundreds of images, and then paint something inspired by the images they reviewed, why is that so different than having AI perform that step? Isn't the end result the same? Images have been reviewed, and something was created. If the images in the article aren't copyrightable, is the copyright office saying it's ok for an organic brain to review and paint but, that same organic brain, cannot use AI to perform the same task? And where does the Copyright office get the authority to make that decision?

And, where is the difference between telling Photoshop to perform some task to an image using AI vs. Midjourney doing a bunch of the work directly?

Artists sue other artists for copyright infringement. If a work is significantly similar to pre-existing art, then the plaintiff can win the suit. The same rules should apply with AI assisted art.

The challenge with AI is that we don't know there the prior art comes from and what percentage of the prior art was used in the generation of the images.

I suppose there's some legal threshold/percentage of where a work becomes copyright infringement. The AI could be trained to use prior art below that threshold to avoid copyright infringement. I suppose it could even print a report as to how the image was generated.

 

[mhersh]

There is no clear line to draw between "AI" and "software in general". Are we going to claim anything made with Photoshop is not eligible for copyright? Where do we draw the line?

Existing generative AIs like Stable Diffusion already support using custom imagery as input. So if I feed an AI a sketch and have it "punch it up", does that invalidate copyright? How is that different from using a Photoshop filter?

AI is a creative tool like any other. Anyone who does not understand that should not be writing laws on the subject.

 

[Deleted member 831377]

This sounds like a fun test case for the Supreme Court.

If a person was to look at hundreds of images, and then paint something inspired by the images they reviewed, why is that so different than having AI perform that step? Isn't the end result the same? Images have been reviewed, and something was created. If the images in the article aren't copyrightable, is the copyright office saying it's ok for an organic brain to review and paint but, that same organic brain, cannot use AI to perform the same task? And where does the Copyright office get the authority to make that decision?

And, where is the difference between telling Photoshop to perform some task to an image using AI vs. Midjourney doing a bunch of the work directly?

Artists sue other artists for copyright infringement. If a work is significantly similar to pre-existing art, then the plaintiff can win the suit. The same rules should apply with AI assisted art.

The challenge with AI is that we don't know there the prior art comes from and what percentage of the prior art was used in the generation of the images.

I suppose there's some legal threshold/percentage of where a work becomes copyright infringement. The AI could be trained to use prior art below that threshold to avoid copyright infringement. I suppose it could even print a report as to how the image was generated.

I encourage you to read this thread:
View: https://twitter.com/svltart/status/1592220369599045633
that examines in detail, with supporting graphics, why the "but if a person can do it why can't a machine??" argument is not a very good one.

 

[NYKevin]

ONLY if both have an agreed term that the copyright transfers that meets the statutory requirements. Even if both parties agree that it was a work for hire, there must be a written contract stating this. Just because someone works for you fulltime is not enough.

Even my link says that generally copyright goes to the person doing the work by default UNLESS there is a specific exception. And in the work for hire case, it's that there is a contract spelling that out to meet the statutory requirements.

The opposite is true as well, I can hire someone even temporarily, to create a work and I get the copyright transfered to me.

No, that is not the law. 17 USC 201(b) says the following:

In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

It's the opposite of what you say. The employer owns the work by default, a contract is required to countermand that default. Repeatedly insisting that you are right will not change what is written in the statute book.

 

[hillspuck]

To further this idea, if Photoshop had the ability to take text inputs in natural language (draw a fine line between the head and the hand, etc), would that work be copyrightable?

Or to use a more real example, using Context-Aware fill, is the part of the image that was edited with Context-Aware fill copyrightable? Or the Healing Brush, or any of the other automatic tools in Photoshop

I don't think there will ever be 100% no-gray-area answers to these kinds of questions. But I don't think it hurts to consider the large amounts of black and white on the opposite sides of that gray area as basically solved.

 

[unequivocal]

Personally, I agree that copyrights should not be issued for AI-generated images. As for stories, that's more problematic, unless one wants to be pedantic and say that machines can't hold copyrights, and someone who generated the story is not the holder of the copyright, either.

Then we get into the "who owns the copyright, the camera's owner or the monkey who took the picture?" question.

AI's aren't entities who can own copyrights, but they're also "cameras" that can generate images based on data from other sources.

I wouldn't be at all upset if it's decided that nothing AI generated can be copyrighted. That would, at least, take all the wind out of the sales of AI-generated art and probably please the hell out of the artists and authors who actually work for a living.

This definitely adds a twist to business that are going to depend on AI generations. The thing I don't understand is what the line will be on when the artist's work become predominate. The guy in this article for example: https://meincmagazine.com/information...has-a-confession-his-photos-are-ai-generated/ -- he heavily retouched the photos he generated. Is that enough to earn copyright? If not, where is the line? I think the Copyright office has made a somewhat sensible ruling (not what I expected) but I think they have opened a gigantic can of worms now about where copyright starts and stops for this technology.

 

[Dioptase]

I realize the issues with copyright for AI generated (or supported) images, but fundamentally she engaged in a creative process. That seems like it should be copyrightable...

Her creative process ended with the text prompt. That could be copyrighted assuming it meets the required threshold for creative work (i.e. isn't just "picture of a girl"). As the law stands, if you gave a similar prompt to a human artist, they would own the copyright (which would transfer if a work for hire). But a machine generated art does not currently qualify for a copyright, which means there is no copyright for her to acquire.

Changing a non-copyrighted work can lead to a copyright, but must still pass the threshold for creative work (i.e. a single pixel change is unlikely to be enough, but how many pixel licks does it take to get to the center of the copyright pop?).

 

[Fred Duck]

It's possible that the ruling may eventually be reconsidered as the result of a cultural shift in how society perceives AI-generated art—one that may allow for a new interpretation by different members of the US Copyright Office in the decade ahead.

It comes down to two points:

1 Today, American copyright (not copywrite, which everyone's spell checkers should flag) cannot be assigned to an AI.

2 "AI-generated art" is generated (created) by AI.

Therefore AI-generated art can't be copyrighted. This seems fairly straightforward.

Kashtanova's attorney responded to the letter in November with an argument that Kashtanova authored every aspect of the work, with Midjourney serving merely as an assistive tool.

If it's simply "helping," is there an example of Kashtanova's unassisted artwork for this project?

 

[Longmile149]

You'd probably need to run your own stable diffusion instance and control all the seeds in order to repeat output.

Right, but there’s nothing stopping someone from setting up a locked-down instance like you’re describing and opening it up to public use…so the question remains.

Who owns the copyright on that image?

 

[metavirus]

Something important to bear in mind, which a couple others have referred to obliquely: IP protections are purely a government-enforced sword that someone can use to enforce their exclusivity on a piece of IP. No one needs a copyright to go out and sell things like this. Copyright only comes up if someone else claims that they own the copyright on the thing you’re selling. If a given work (like the unmodified output of an AI) isn’t capable of being copyrighted, then anyone can sell it, as it’s considered to be in the public domain. I mean, it sucks for the person arranging the images into a comic book, but they’ve got the copyright on the arrangement and text, so it’s unlikely that a copyright on each image is very important, as the “creative” part of the work is mainly in arranging the images and writing clever text over them.

 

[heartburnkid]

Personally, I agree that copyrights should not be issued for AI-generated images. As for stories, that's more problematic, unless one wants to be pedantic and say that machines can't hold copyrights, and someone who generated the story is not the holder of the copyright, either.

Then we get into the "who owns the copyright, the camera's owner or the monkey who took the picture?" question.

AI's aren't entities who can own copyrights, but they're also "cameras" that can generate images based on data from other sources.

I wouldn't be at all upset if it's decided that nothing AI generated can be copyrighted. That would, at least, take all the wind out of the sales of AI-generated art and probably please the hell out of the artists and authors who actually work for a living.

IIRC, that monkey case was decided as, the monkey was the author of the picture for copyright purposes, but since a monkey can't hold a copyright, the pictures are public domain.

It seems like a similar precedent would apply here - since the AI is the author, and the AI cannot hold the copyright, this would be public domain.

 

[cbf123]

“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”

The original images originated from a machine. Doesn't matter how creative she was. There will need to be a new law or court decision. This is such a novel situation (AI/ML that can output decent products) we need to have the best 'thinkers' in the country get together and decide how it should be handled.

Arguably in the case of Midjourney and other stable-diffusion software that operates in similar fashion, the creative input was the prompt given to the AI. Typically this would have to be iterated multiple times to get the sort of output that the artist is looking for. If another person provided exactly the same inputs to the algorithm, they should get the same generated image.

I wonder if an argument could be made that it's not the image itself that is copyrightable, but rather the specific combination of prompts given to the AI?

The act of applying an "unsharp mask" or "gaussian blur" operation on a digital image is purely mathematical. The creativity is in specifying which part of the image needs the operation applied, how strongly, with what radius, etc. In other words, the inputs to the algorithm.

 

[C.M. Allen]

ANY prompter's contribution to the A.I. image generation process is purely ART DIRECTION.

And as these tools improve, getting faster, more complex, and more capable, I fully expect most professional artists are going to be relegated to the 'director' role, employing various AI tools to do the work that used to be done by artists. It's not going to eliminate artists so much as it's going to relegate them to more of a niche role, not unlike many other jobs that only exist in a dramatically paired down role in the modern world (like blacksmiths or stagecoach drivers).

 

[Digital Dud]

Does this mean an otherwise original artwork can become "tainted" if an ML model was used to say... populate some detail in the background using latent diffusion and then become ineligible for copyright protection? Kind of like doing sampling in music production.

 

[MambaLev]

No, that is not the law. 17 USC 201(b) says the following:



It's the opposite of what you say. The employer owns the work by default, a contract is required to countermand that default. Repeatedly insisting that you are right will not change what is written in the statute book.

It looks like I got tripped up with the "within the scope of work" portion. A photographer would have their photography work reassigned, but apparently if they say wrote code while working there but it wasn't part of the assigned duties persay it wouldn't be transferred.

 

[C.M. Allen]

Does this mean an otherwise original artwork can become "tainted" if an ML model was used to say... populate some detail in the background using latent diffusion and then become ineligible for copyright protection? Kind of like doing sampling in music production.

If you use an AI tool to create pieces and details that YOU then stitch together into a finished product, that should meet the bar necessary to be eligible for copyright. The AI isn't handling placement, composition, lighting, etc. You are.

 

[Cthel]

Arguably in the case of Midjourney and other stable-diffusion software that operates in similar fashion, the creative input was the prompt given to the AI. Typically this would have to be iterated multiple times to get the sort of output that the artist is looking for. If another person provided exactly the same inputs to the algorithm, they should get the same generated image.

I wonder if an argument could be made that it's not the image itself that is copyrightable, but rather the specific combination of prompts given to the AI?

The act of applying an "unsharp mask" or "gaussian blur" operation on a digital image is purely mathematical. The creativity is in specifying which part of the image needs the operation applied, how strongly, with what radius, etc. In other words, the inputs to the algorithm.

The challenge there is that (as a general rule) you can't copyright an idea, only an expression of that idea.

It's going to be very hard to argue that the prompt is the expression rather than the idea

 

[just6979]

This is a counter example to the argument that AI will completely displace people for creating art or any other copyrighted material. Or an argument why AI works shouldn't be granted copyrights. If you want to monetize AND protect a creation, it needs to be made by a human.

As a thought experiment, how much AI do you thing Disney would rely on if it puts a cloud over their content?

"made by a human"?


So, if you want to "monetize AND protect", then no using the algorithms in Illustrator to downsample your drawing for nice sharp ink lines? No using magic lasso (powered by algorithms) to make layers and move things around? Filters? Clone Stamp? Unsharp Mask?


It's just another tool.


Or is it only "monetizable AND protectable" if you gather berries from a bush that came from a seed that blew on the wind, smash them with random rocks, make a brush with your own hair (that you grew by eating only berries you gathered yourself and wild animals you killed with your bare hands), and paint on a piece of birch bark?


It's just another tool.


Is it "monetizable AND protectable" if someone takes a rubber stamp, made by someone else, even more likely made by a machine, and just stamps random colors and patterns into an aesthetically pleasing piece? What if the rubber stamp is an unintended design created by a machine malfunction? What about a malfunction caused by a feedback loop between multiple machines on the assembly line?


It's just another tool.

 

[Digital Dud]

If you use an AI tool to create pieces and details that YOU then stitch together into a finished product, that should meet the bar necessary to be eligible for copyright. The AI isn't handling placement, composition, lighting, etc. You are.

Right so, you can create a sketch of an image, put it into img2img diffusion and get a fully rendered photograph or painted work, or whatever style you prompt for. You're dictating the composition yourself, but the AI is pulling in all the details from latent space to fill out the details. I guess purely using a text prompt without any image source fails the test. but adding a source image as input passes the test?

 

[ip_what]

No, that is not the law. 17 USC 201(b) says the following:



It's the opposite of what you say. The employer owns the work by default, a contract is required to countermand that default. Repeatedly insisting that you are right will not change what is written in the statute book.

You’re both right. There are two classes of works for hire, works made within the scope of employment and certain specially commissioned items.

If it’s a work within the scope of employment, you don’t need a written agreement. (But this is your friendly neighborhood IP attorney begging you to have employment agreements with IP provisions if you’re hiring someone.) If it’s a specially commissioned work, you do need a written agreement. Similarly stated a specially commissioned item cannot be a work made for hire unless there’s a written agreement, signed by all parties, that agree it’s a work made for hire (and effectively transferring copyright ownership).

https://copyright.gov/circs/circ30.pdf
(See page 3).

 

[zed_crash]

so any image made with TOOLS isnt copyrightable?
or those random splotch of paint that are selling for millions?

 

[Smashing Young Man]

ANY prompter's contribution to the A.I. image generation process is purely ART DIRECTION.

What these "prompt engineers" do is the equivalent of shopping on Amazon for new drapes. Type in the search bar the description of the style of drapes you want, then look through the results until you find what you were more-or-less looking for.

 

[Skizzman]

I wonder if an argument could be made that it's not the image itself that is copyrightable, but rather the specific combination of prompts given to the AI?

I'm sympathetic to this argument, but how would a series of prompts and selections satisfy the "fixed in any tangible medium of expression" requirement?

 

[matrox_g200]

This is a counter example to the argument that AI will completely displace people for creating art or any other copyrighted material. Or an argument why AI works shouldn't be granted copyrights. If you want to monetize AND protect a creation, it needs to be made by a human.

As a thought experiment, how much AI do you thing Disney would rely on if it puts a cloud over their content?

This still doesn't prevent Disney from using AI to generate "filler" art and backgrounds (so they won't have to pay humans to do it), while keeping most of the content human-generated so it is copyrightable. Which is what will probably happen.

BTW to all the people here who say AI-generated images should be copyrightable, let's not forget the legal justification for copyright is "to promote the progress of science and useful arts", not "to provide Disney and Hollywood studios with monetizable intangible assets". How does an AI randomly generating pictures promote the progress of useful arts?

 

[C.M. Allen]

Right so, you can create a sketch of an image, put it into img2img diffusion and get a fully rendered photograph or painted work, or whatever style you prompt for. You're dictating the composition yourself, but the AI is pulling in all the details from latent space to fill out the details. I guess purely using a text prompt without any image source fails the test. but adding a source image as input passes the test?

That's not any different than providing it a text prompt. None of your 'work' is present in the final product. An AI is responsible for all of it.