The US Copyright Office is defending an unworkable rule.
I think this is a fantastic analogy between AI tools and the art and new area of expertise brought on by cameras. Exploring the latent space with prompts, fine tuning new models, all will be elements of human creativity as the tools enable greater works.
There are a LOT of digital artists. I've always assumed that mostly they simply paint with software, but perhaps they also cut and paste within a given canvas and do other things. If the copyright office starts screwing them, I'd expect a backlash.
If I was an AI artist I'd also be taking the position that my creation process was none of their business, and I'd consider it my right to conceal it from them and to sue them.
What are the precedents for included noncopyrightable things, like Campbell's Soup cans (or more detailed prior work directly included) in your multimillion dollar painting?
The problem I have with your approach is that AI is basically cherry-picking material from other artists, and just because we are unable to know exactly who a tiny detail is from, it still infringes on the rights of an existing creator.
It doesn't matter if you're a painter, a photographer, a 3D artist, you're still being shunned by every community if you steal other people's material without attribution or citation.
A vast flood of AI generated material would then be under copyright protection. Everything will be owned and it will be almost impossible for a human being to produce anything that cannot be challenged as an infringing work. (See what's happening in music?) I was hoping that AI would bring an end to copyright altogether. Copyright has evolved to inhibit creativity, not promote it as hoped by the framers of the Constitution.
Copyright as such should be banned. It is largely idiotic and detrimental to creativity and detrimental to a much more share based world. Instead of an economy based world.
With this rule, the AI-generated image is in the public domain. But the prompter can modify it, creating a copyrighted derivative work, and never release the AI-generated image. If that's a valid workaround, then this isn't a very good rule.
I think it is highly disingenuous to suggest that AI-works are 'generated by a machine' when the quality of output depends mostly on the dataset of original art, not the program. In photography, the subject/landscape/etc. is just that, a moment in time, not the actual artistic output of thousands, maybe millions. In other words, copyright should consider 'what artist(s) are most responsible for the output?.' It's hard for me to attribute anything more than a fraction of AI output to the prompter, because the AI is so fundamentally a remix of other people's work. If anything, the copyright should be shared.
Tim, several of the comments call for more minimalist approaches to copyright in general. In the spirit of steelmanning, can you see a workable copyright minimal approach? Maybe the copyright office's approach is a decent minimalist approach?
"If artists want their work to stand up in court, they may need to start carefully documenting their creative process so they can prove that their work was made without AI."
Honestly, this does not seem particularly burdensome, given how generous copyright is. Exclusive reproduction rights for a piece of art for life of the artist (which will hopefully continue to extend over the coming century) plus 70 years is a truly expansive property right. Asking digital artists to record their creative process by capturing their screen at the cost of pennies of electricity and drive space seems reasonable, given the expected reward.
Are there circumstances where we wouldn’t want to grant copyright protections? For example, an algorithm that generates endless images and posts them to social media automatically. Should they (each individual piece) get IP protections?
The problem here, as I see it, is that these AI programs have scraped billions of copyrighted works, which they then chew up and spit out according to the artist’s prompts. No permission was sought or granted for the use of the scraped images.
The logical next argument is that that is exactly what a human does. A human perceives innumerable images during their life, chews them up and then uses that collective knowledge to form their own original material. However, that is an incomplete argument, because humans also must develop refined motor-skills to generate their works, and they must navigate several perceptual layers in order for their work to be created – making the finished work truly unique to them.
As for the argument that landscape photographs are nothing more than pointing a mechanical device at a scene and clicking the shutter, that is the sort of argument made by someone who is unaware of photographic framing and positioning, let alone choices in timing to allow for different natural lighting effects – all aspects unique to the photographer’s skill and body of work.
I agree with your conclusion that this is not a simple problem and that it must be addressed. Using some degree of so called AI during the creation of original works must be allowed for copyright purposes, but where that boundary lies will be very difficult to determine.
If I tell someone they should write a book and suggest 600 ideas that are then incorporated into the text, I don't get to copywriter it because I didn't write it.
I agree that lack of copyright of AI is inconsistent with how photography is treated. Legally this is indeed a quagmire and would encourage lying. But I wonder what would be the social effects if that holds? Perhaps this ruling is a way to preserve the value of work of human artists who don't use AI? You would still need to pay them I you need your image to be copywritten.