२७ एप्रिल, २०२३

"The last time the Supreme Court decided whether a work produced using a machine was eligible for copyright was in 1884."

"The case involved a photograph of Oscar Wilde taken by Napoleon Sarony. Rejecting the view that photographs were simply mechanical reproductions, the court recognized that they are 'representatives of original intellectual conceptions of the author.' That is, the author of a photograph is its originator, or the person who 'represents, creates, or gives effect to the idea, fancy, or imagination.'... Had the court excluded photography from copyright, it would not have flourished as profession or art.... This isn’t to suggest that AI-prompted works should be broadly protected. To the extent that creators use common prompts to generate similar images, the scope of copyright should be very thin, to protect against verbatim copying. But there is a big difference between a thin copyright and no copyright at all. Unfortunately, the Copyright Office’s new policy hurts American creators... [who] will bear the brunt of the office’s newfound duty to disclose AI-generated works — and to expressly exclude such works from copyright...."

Writes lawprof Edward Lee, in "A terrible decision on AI-made images hurts creators" (WaPo).

Here's that photograph of Oscar Wilde:

>

From the Metropolitan Museum:
Wilde went to America in 1882... to give a series of lectures on the English Renaissance to promote the opening of D'Oyly Carte's production of the Gilbert and Sullivan operetta "Patience," in which aestheticism and Wilde himself were brilliantly satirized. Posing as the ultimate aesthete, or, rather, a caricature of one, Wilde was warmly received and enjoyed tremendous social success... 
Wilde appeared in Sarony's studio dressed in the attire he would wear at his lectures: a jacket and vest of velvet, silk knee breeches and stockings, and slippers adorned with grosgrain bows...

The Met informs us that Wilde's face is "not yet bloated by self-indulgence and high living," which means he looks pretty good here, as opposed to how awful he'd look later. And we're told that the pose expresses "the intelligence and spontaneous charm of the conversationalist" above the "the appearance and calculated pose of the dandy." Who created the image? Wilde or Sarony? It's Sarony who owned the copyright, and certainly someone should. 

This post made me think about my own experience posing in a photograph that got used as if it were a stock photograph. I was irked at getting used, but I did not take the picture, so I was not the owner of the copyright.

२६ टिप्पण्या:

Enigma म्हणाले...

We are all China now. Once it's in the public, copying or republishing is considered fair game.

Copyrights are so 20th Century. Those who own the means of production...capitalism...blah, blah, blah...communism...blah, blah, blah...

The de facto Internet rule is that it's "public domain" once seen by the "public." You can pay $$$$$$ for an NFT of the tree growing from Madonna's hoo-ha, but we've all see the image and can link to news stories showing said tree and hoo-ha. Or, just quote another story in a Twitter post.

The green bushy hoo-ha in question:

https://www.the-sun.com/wp-content/uploads/sites/6/2022/05/cw-madonna2022-05-11-at-43951-PM-3jpg-JS732226265-muzz.jpg?strip=all&w=960

https://img-s3.onedio.com/id-627cdc39ceed55a817b69be5/rev-0/w-635/f-jpg/s-24e896f53a39cd366c1ab2f23fb4e9454784b835.jpg

Lyle म्हणाले...

Oscar Wilde visited Jefferson Davis, at Jefferson Davis' home on the Mississippi Gulf Coast, during this same trip to America. He was there for like 3 days. Davis was the most interesting American Wilde wanted to meet. Davis thought he was different, but Davis' wife and daughter loved him.

Original Mike म्हणाले...

What's with the lump in the carpet?

tommyesq म्हणाले...

Taking a photograph in 1884 required considerable skill, preparation, lighting, film selection and development techniques and the like, with considerable variability from one to another, Today, just point and shoot - I am not certain that photographers should automatically hold copyright for such a low level of effort and virtually no creativity - the camera does all of the key decision-making, not the photographer. Copyright law has an "originality" requirement - the work must have “at least a modicum” of creativity, and it must be the independent creation of its author. It strikes me that at a minimum, there is room for argument that point-and-shoot pictures meet this requirement.

rhhardin म्हणाले...

Michele Boldrin podcast on why there shouldn't be any copyright or patents.

Kate म्हणाले...

How different is a digital photo these days -- point and click with settings decided by the device -- from an AI generated image? That Wilde photo needed a lot of human intervention to create it. Lighting, f-stop decisions, film speed, developing the stock. We're a long way from early photography.

rcocean म्हणाले...

WIlde was a real joke machine: He has no enemies, but is intensely disliked by his friends.

His comment on his trip to "Leadville CO" in 1879

They are miners – men working in metals, so I lectured to them on the Ethics of Art. I read them passages from the autobiography of Benvenuto Cellini and they seemed much delighted. I was reproved by my hearers for not having brought him with me. I explained that he had been dead for some time which elicited the enquiry ‘Who shot him’? They afterwards took me to a dancing saloon where I saw the only rational method of art criticism I have ever come across.

Mike (MJB Wolf) म्हणाले...

OMG it looks just like Gilligan in a time-traveling episode! Or for the Althouse generation, Maynard G Krebs in costume.

Ampersand म्हणाले...

The argument that protection for AI should be in the nature of a "thin" copyright could only be advanced by an academic.
"Thinness" is so subjective that nobody in the real world will have a clue as to what is and isn't actionable. For artists who aren't big corporations, the mere existence of a claim, even frivolous, can destroy marketability. Copyright lasts 95 years.

The example of photography is hilariously clueless. Photography should have been the subject of a separate statute that provided shorter protection, and restricted protection to direct appropriation, and required evidence of actual creative expression. Paparazzi journalism, security cameras, and other mindless imagemaking should not get copyright protection. You need a separate law if you decide to protect AI.

Mike of Snoqualmie म्हणाले...

A photographer puts his thoughts and skills into a photograph. The same for a CGI image. An AI-image is created by a soulless machine. The creators of the AI have no idea how that AI created the image. There's no human component to an AI-image. Only if that image was manipulated by the user could it be considered for copyright protection.

Left Bank of the Charles म्हणाले...

The Copyright Office’s reasoning that the AI-generated images include non-human authorship does not hold up to scrutiny.

If the creators of Midjourney fed the inputs into their AI program to produce the images in question, is there any doubt that they would be accepted as the authors of the work? Even if a whole bunch of people were hired to create and train the AI program, it’s a group effort by humans.

If the creators of Midjourney claimed copyright in any image produced by their AI program, would the fact that another person entered the inputs defeat their claim? The images would still be the results of a group effort by humans.

tim maguire म्हणाले...

The Monkey selfies may be applicable here. In this case, the owner of the camera tried to claim copyright and lost--the monkeys took the pictures.

I've never created AI art, but is it so different? Mere ownership of the camera and the lack of a competing claim (because the monkeys can't own the copyright either) wasn't enough to generate a right. How much involvement does the human have in AI created art? What do they tell the AI? What parameters do they set? What choices do they make?

I'm open to the programmer having a valid claim, but I'm not convinced.

tim maguire म्हणाले...

Ampersand said..."Thinness" is so subjective that nobody in the real world will have a clue as to what is and isn't actionable.

That describes all sorts of laws, which people don't really understand until the courts fashion the contours.

Photography should have been the subject of a separate statute...and restricted protection to direct appropriation

That is the current situation. If you photograph a building, all you own is that photograph. You don't own the building, the way the sun hits it, where you stand when you take the photo. All of that is still free to anybody else who comes along.

JK Brown म्हणाले...

The most interesting thing about all the AI takeover of writing, images, etc. is that the artists who live for their art seem quick to abandon their art when the money dries up. Not saying it's wrong given the lower financial return, just that it exposes the preening of the "artist for the art" identity.

Lem Vibe Bandit म्हणाले...

AI is not just both sides now.

Rows and flows of angel hair
And ice cream castles in the air
And feather canyons everywhere
Looked at clouds that way…


I can see a theme now the rain is gone

Can AI help Ed Sheeran out? Now?

Fred Drinkwater म्हणाले...

The "lump in the carpet", and the resulting pose, is one of the many artistic choices made by the photographer.

Owen म्हणाले...

How about protecting works authored by AI not with "thin" copyright but with "short" copyright? Instead of 95 years for this inhuman artwork, give it a year? That would be a reasonable term in which to harvest the economic benefit that, excuse me, came at exactly no human effort. Why should the owners of digital slaves be entitled to enjoy the fruits of their labor for decades? Isn't that deeply wrong?

Greg the Class Traitor म्हणाले...

If I create an AI system, and then tell it to make something, I should have the copyright from whatever it makes

That assumes, however, that I had legal right to use the inputs I used to train it.

The requirement for a patent is that the thing must not be "obvious" to a practitioner in the field.

1: So no AI produced output from someone else's AI should be copyrightable if the input is "obvious"
2: If you write a program by issuing a bunch of prompts to an AI code writer, you should own copyright for, and be able to sell, that program
OTOH, someone else can issue almost all the same prompts, you can't copyright 99% of them because they're obvious, and generate very similar code, without violating your copyright.

There's only so many ways to can say "give me an accessor for field X", and 99.9% of programmers are going to find the same one way to do it.
You can't, and shouldn't be able to, copyright those

Jupiter म्हणाले...

"Had the court excluded photography from copyright, it would not have flourished as profession or art ..."

Bullshit. Noxious bullshit.

Greg the Class Traitor म्हणाले...

We identify plagiarism by use of the same words / same patterns.

Given similar prompts, an AI is going to generate similar words / patterns.

Unlike patents, copyright is NOT about "who did it first". It's simply about "did you do it independently"?

If you get a patent for doing X, and I see your X and decide to make my own, I'm likely to violate your patent, and be liable for punishment

If you publish an article on X, and that inspires me to write my own article on X, where I pretty much always agree with you, but do it my way, that is NOT a violation of your copyright.

If you give an IA bot a prompt and it writes an article for you, there is no legitimacy to the idea of giving you a "copyright" on that prompt.

So if someone else coming up with the same or similar prompt will get the same article, it would be illegitimate for you to have a copyright on the AI generated article that prevents anyone else from using theirs, no matter how similar it is to yours.

So, if you use a prompt to get an AI to generate a picture, and your contract with the owner of the AI gives you ownership of what you generate using it, then you should own that picture, and be able to sell that picture, and if someone tries to take you picture and sell it / violate your copyright you should be able to sue them.

But just as someone else could have had Oscar Wilde pose for them with the same pose and clothes, anyone else should be free to go to the AI and generate their own picture, to which they will have all rights.

And so long as they can show their own prompts, and the fact that the Ai generated the picture for them using those prompts, you're out of luck, even if the pictures are identical

Greg the Class Traitor म्हणाले...

One other way to look at this is "Work for hire"

When you hire someone to do something for you, they own the copyright, not you.

So an AI company should be able to sell you a contract to get "work for hire" out of their AI.

But unless the contract you sign with the AI company gives you exclusive rights to the output from any prompt you give it, everyone else can use that prompt, too.

mikee म्हणाले...

Google and Facebook will own the rights to anything your generate using pixels, most likely.

Scott Patton म्हणाले...

Copyright some AI enhanced moon photos.

Greg the Class Traitor म्हणाले...

mikee said...
Google and Facebook will own the rights to anything your generate using pixels, most likely.

Unlikely. It's not their content to begin with. Esp. in the case of Google

What's more likely is that courts will rule that the "fair use" exception for search will NOT extend to "training your AI".

Or, at a minimum, that someone can put up a robots.txt file that gives rights to index the site for search, but not for AI, and that Google will be forced to honor that,

Kirk Parker म्हणाले...

Greg The Class Traitor,

You have it exactly backwards: the phrase "work for hire" is used for the scenario where an employee does the work, in which case the employer owns the copyright or patent.

Greg the Class Traitor म्हणाले...

Yes, Kirk, and in this case the AI would do the work, and the person prompting the AI would own the copyright
AI == employee
Prompter == employer