Copyright and why it's broken. - Tom Scott

So recently there has been a lot of debate on AI-generated art and its copyright. I’ve read a lot of comments recently that made me think of this video and I want to highly encourage everyone to watch it, maybe even watch it again if you already viewed it. Watch it specifically with the question “If an AI did it, would it change anything?”

Right now, AI-generated works aren’t copyrightable. artnews.com/…/ai-generator-art-text-us-copyright-… This means you can not copyright the works produced by AI.

I work in games so this is more seemingly relevant to me than maybe it is to you. techcrunch.com/…/valve-responds-to-claims-it-has-… Steam has outright said, earlier this month, that it will not publish games on its platform without understanding if the training data has been of images that aren’t public domain.

So right now, common AI is producing works that are potentially copyright-infringing works and are unable to be copyrighted themselves.

So with this information, should copyright exist, and if not, how do you encourage artists and scientists to produce works if they no longer can make a living off of it?

adespoton,

A lot of people misunderstand the purpose and implementation of copyright.

To make things even more confusing, most people only understand the US version of copyright. The US has worked really hard to get the rest if the world to align their copyright law with the US, but they’re all subtly, and sometimes not so subtly, different, even before you get to the different legal systems used to interpret and implement copyright law.

The first thing is: copyright is about the right of a human creator to control how a copy of their work is made available (publicly in some countries, any in others) for a limited time. In some places that right can be temporarily or permanently assigned or sold to someone else.

So when it comes to AI, one group argues that unless the rights holder licenses the work to be part of a training set, it’s not allowed to be part of a training set.

Another group says that it doesn’t matter; if the human creating the training set got the work legitimately, they can use it to train a model.

The models themselves do not contain any copyrighted material and so are outside the discussion.

Copyright is flexible; for music, we have different copyright rules for recording, reproducing, and performing music for personal or public consumption, with different copyright for music and lyrics and associated video.

This could also be applied to AI, with training models being a new “recipient” of copyrighted content. We could enshrine in law how this can be done legally. But so far, we haven’t, so it falls back to “is this fair use?” and “are different copyright permissions needed when a human is not consuming the work?”

The end bit, that AI created works aren’t copyrightable, is already settled. However, any work a human does to tweak or select AI generated content, if it is itself creative, is copyrightable.

So yes, copyright should exist. People need to re-learn what it actually is though, and additions may be required to the laws in order to enable AI generated art to promote valuable skills and knowledge.

EnglishMobster, (edited )
EnglishMobster avatar

100%.

It gets tricky, though. For example, I'm using a website called "Sudowrite" to help me write a novel. I've been kicking this idea around since 2007. I have a general idea for what it should look like, but I always struggle with Act 2.

Literally over a decade's worth of notes. And not a good Act 2.

But I was able to use ChatGPT and Sudowrite (especially its "Story Engine" tool) to finally understand what Act 2 was missing. And now I'm able to rewrite what I've already done, making it better. AI is a tool just like a word processor is a tool.

Lest anyone think I'm writing an ad here - I'm not. Per their FAQ, Sudowrite says that I own the copyright on anything that I generate with their stuff.

Who owns the copyright to what I write?

You do. Anything you write in Sudowrite and anything Sudowrite suggests for you belongs to you.

But if I don't modify it, that's clearly not true (as you mention). Furthermore, I can actually have it suggest things that might run counter to that idea.

I've had it suggest lines from Kafka - good lines, too. I've read Kafka, so I recognized them... but what if I didn't? I don't own the copyright on those lines, as Tom Scott points out in OP's video. Kafka's original German is public domain... most translations are not.

You can highlight some text in the tool and say "Write this in the style of Douglas Adams." It knows who Douglas Adams is. It knows what his work sounds like. And the only way it knows is because its model was trained on his work. When I did this, one of the suggestions included Zaphod Beeblebrox, which was certainly not mentioned in my text. It also suggests spaceships and aliens and futuristic gadgets, all written in the kind of prose that you'd expect from Hitchhiker's Guide to the Galaxy.

How would it know that, if it hadn't read Hitchhiker's Guide to the Galaxy?

It's why Sarah Silverman is suing OpenAI. While the model may be a bunch of statistics, it also must know what her text is like - to some degree. We can argue over how, but going back to the AI suggesting Zaphod Beeblebrox... if I didn't know HGTTG maybe I'd think that's a cool name for a character? How can Sudowrite say I own the copyright when it's clear that they don't own it, either?

Which sort of brings me back to the beginning. AI has the potential to be a wonderful tool - again, like going from a typewriter to a computer. I have had this idea for literally 16 years now, and Sudowrite was literally a game changer. I knew all of act 1, act 2 was... ehhhh, and then act 3 was never satisfying without a good act 2. I knew where I wanted to go, but not how to get there. AI really helped, because it understands story structures - and how to make good stories (with some prodding - it's not perfect). And now, whenever I'm stumped, I can type some stuff into the prompt and it'll generate ideas for me.

But that only works if we really figure out where the line is for copyright. I'm trusting what Sudowrite is telling me... but I'm taking a risk, because what if they're wrong?

mistersheep,

Keep in mind that you cannot copyright ideas. You copyright the specific implementation of those ideas. So simply mentioning Zaphod Beeblebrox doesn’t trigger anything to do with copyright, but if you had a word for word introduction of Zaphod Beeblebrox copied straight from Hitchhiker’s Guide that would be a problem.

Then after that you can normally have “de minimus” use, where you can use a small portion (think quotes, short phrases etc). As long as your work can’t be used as a replacement for the original then you are normally in the clear (legally speaking, as far as copyright goes).

But none of this goes into trademark law, but that’s a whole other thing and are generally easier to avoid too (e.g. don’t use the word “coke” to sell your drink).

TL;DR: As long as the AI doesnt spit out a verbatim copy of the original, and then if you copied it verbatim from the AI, then you’d be in trouble.

I am not a lawyer, just a dude interested in copyright law.

yA3xAKQMbq, (edited )

you cannot copyright ideas

I don’t know about US law, but in Europe you certainly can, and it’s an issue over and over again ending up in courts.

simply mentioning Zaphod Beeblebrox doesn’t trigger anything to do with copyright

Yes it does. Fanfiction e.g. is considered infringement of the creator’s right, and that doesn’t extend to the exact verbatim text but to general plots, names, etc. It’s even infringement if you write a story about „Härrie Pötter“, since it’s immediately obvious that it’s based on Harry Potter.

Some years ago a German discounter sold a costume that was an obvious reference to the TV depiction „Pipi Langstrumpf“, a famous character by Swedish author Astrid Lindgren. Mind you, in essence it was just a really cheap wig and a dress somewhat resembling a tv character. The company owning the rights on the character sued and won.

Edit: oh! I missed the part where there were two courts that decided it was infringement but in the end the highest court overruled that and said it’s not: lto.de/…/bgh-urteil-pippi-langstrumpf-romanfigur-…

Which only proves that all of it is completely arbitrary and just a matter of opinion. /Edit

In another case, someone took a photo of a soldier, cut out the soldier, turned it into an outline, and printed and sold t-shirts of that. If you took the shirt and put the photo next to it, it was immediately obvious it was based on the photo. Here the court had no issues, because in their opinion it was too far away from the original work to be compared with it. 🤷‍♀️

So, it’s quite impossible to draw a line between an idea and an implementation, and that’s why thousands and thousands of infringement cases are ending in front of courts, and in the end the only relevant factor is the opinion of the court.

shagie,

Yes it does. Fanfiction e.g. is considered infringement of the creator’s right, and that doesn’t extend to the exact verbatim text but to general plots, names …

The relevant concept for this is copyright protection for fictional characters.

GenderNeutralBro,

It’s even infringement if you write a story about „Härrie Pötter“.

It’s a bit more complicated than that, as evidenced by the fact that J. K. Rowling was not the first person to write a story about a magic user named Harry Potter.

shagie,

It’s why Sarah Silverman is suing OpenAI. While the model may be a bunch of statistics, it also must know what her text is like - to some degree. We can argue over how, but going back to the AI suggesting Zaphod Beeblebrox… if I didn’t know HGTTG maybe I’d think that’s a cool name for a character? How can Sudowrite say I own the copyright when it’s clear that they don’t own it, either?

I’m not entirely sure that it must have “read” her book in order to produce the content that she claims that it must have.

For example - you can read wikipedia, Goodreads, NYT theater review, NPR musical review, Guardian review… and many other reviews and discussions of the book or stage performance to get a sufficient understanding of its contents without ever having had access to the text of the original book.

Just as my old English teacher would note that reading the cliff notes was not reading the assigned text, so too reading reviews and summaries isn’t reading the original text.

hglman,

I read all that in Tom Scott’s voice.

adespoton,

That’s good; I wrote it in his voice too!

Even_Adder,

The end bit, that AI created works aren’t copyrightable, is already settled. However, any work a human does to tweak or select AI generated content, if it is itself creative, is copyrightable.

AI created works are copyrightable and guidance from the U.S. Copyright Office isn’t law, so it’s also not settled. Guidance reflects only the office’s interpretation based on its experience, it isn’t binding in the courts or other parties. Guidance from the office is not a substitute for legal advice, and it does not create any rights or obligations for anyone.

raccoona_nongrata, (edited )
@raccoona_nongrata@beehaw.org avatar

deleted_by_author

    •
    MJBrune,

    I work in the games industry and can tell you AI isn’t going to get to the point any time soon to fully replace game artists. Likewise, I’m an engineer and chatgpt can generate code from prompts but it’s not very good. The 3d models that ai can generate are terrible. If you are a 3d artist you need not worry about ai.

    raccoona_nongrata,
    @raccoona_nongrata@beehaw.org avatar

    deleted_by_author

    •
    MJBrune,

    I mean every industry right now is a race to the bottom. Everyone is trying to provide a product or service cheaper than their competitor. There are 8 billion people on this planet and everyone is trying to undercut someone else to get enough money to live.

    Deathcrow,

    Right now, AI-generated works aren’t copyrightable. artnews.com/…/ai-generator-art-text-us-copyright-… This means you can not copyright the works produced by AI.

    …

    So right now, common AI is producing works that are potentially copyright-infringing works and are unable to be copyrighted themselves.

    This kind of judgement is pure symbolic politics, because it’s completely unenforceable and I’m confused why you didn’t mention it. No one can prove if a piece of art is AI made and no one has to admit it. So yes, AI art can be copyrighted, just not officially as AI art, but it certainly will be and likely already is as long as there’s a human ‘stand in’.

    There’s a huge gulf of difference between a matter of fact and a matter of law.

    MJBrune,

    No one can prove if a piece of art is AI made and no one has to admit it.

    There are tools that are being used to attempt to detect if a piece of work is AI-generated. If those tools say something was, it’s then on you to prove that you hand-created it. Even some artists are already having issues because things “look” AI-generated. The onus is on the creator to prove they have the copyright when dealing with copyright infringement.

    So realistically, if you make some AI-generated content, I steal it, what do you do? How do you stop me from using your content?

    RickRussell_CA,

    So realistically, if you make some AI-generated content, I steal it, what do you do? How do you stop me from using your content?

    Whose content is it? What human person holds the copyright?

    MJBrune,

    In that case, if it’s AI-generated content using a training set from the public domain, the content is generated initially as public domain. Adding changes to that, the changes are not public domain. So you’d have to prove that you changed it and that your work on the AI content was transformative, not derivative. But that’s my point, in that case, there is no one that holds the copyright.

    jarfil,

    Whoever claims the copyright first, holds it.

    The only difference is that up to now there was a very low chance of “collisions” between two humans creating the exact same piece of art at the same time, while now a piece of AI art can be fully replicated given a model, a prompt, and a seed… but in practice, there is still a very low chance of two people randomly happening to use exactly the same model, prompt, and seed… so we’re back to square one: whoever claims it first, holds it.

    Just remember to claim your AI generated human-made art before someone else does.

    MJBrune,

    Claiming it doesn’t make it so.

    jarfil,

    Right now, it kind of does. Like if you took someone else’s work and claimed it as your own: unless they can prove it’s theirs, first one to claim it gets to own the copyright.

    Unfair? You bet. There’s things like SafeCreative that has been running for many years (I used to be part of a precursor to that) or even register it as an NFT to have a proof of precedence.

    MJBrune,

    They can prove it’s their by simply showing things like commit logs and creation process. Recreating the work in question. It’s fairly hard to lie about that stuff.

    First one to claim it doesn’t own the copyright. They still have to argue they own the copyright through a series of details. Specially if someone claims it’s ai generated.

    jarfil, (edited )

    Current copyright law doesn’t require proving anything other than priority of registration/publication.

    Someone can clam it’s AI all they want, they would have to prove it’s AI. Good luck with that (unless they have the exact model, prompt and seed).

    LPT: if you want to publish a game on Steam with AI-generated assets… don’t tell anyone they’re AI-generated, register them to get your copyright, and present that as proof to Steam when asked.

    BTW, creation progress and “commit logs”, can also be faked.

    MJBrune,

    Current copyright law doesn’t require registration or publication in the USA.

    Also, no, someone can simply take your assets, you then must sue them in court and thus you are suing them and the onus is on YOU to make your case that you hold the copyright.

    If you want to test your assumption you may do so at your convenience. My guess is Steam is just going to tell you that they see your content as AI-generated and that they don’t have to sell your product.

    Btw, faked creation progress and commit logs are also provable in court but again, it’s a risk, and if you want to make that risk. Do so. A lot of game studios aren’t going to make that risk just because someone on the internet said they could probably, maybe, get away with it. Video games are multimillion-dollar projects, even for the indie ones, at this point. Betting that you can copyright your game and assets on lying and breaking the law is a risk that most won’t take and most people working on that game wouldn’t stand by. You might find some but the majority of talent isn’t going to.

    jarfil,

    Current copyright law doesn’t require proving anything other than priority of registration/publication.

    Current copyright law doesn’t require registration or publication in the USA.

    sue them in court and thus you are suing them and the onus is on YOU to make your case that you hold the copyright.

    Precisely: while copyright doesn’t require registration or publication to exist, it does require it to prove in court that it exists. Its abstract existence is moot by itself.

    If you generate some AI art, and register or publish it as your own, that’s the only proof you (currently) need in court to sue anyone who’d copy it.

    Regarding Steam, my guess is they’re only gonna CYA and ask you for a statement of ownership, so they can throw you under the bus if anyone comes up with proof that you used AI to generate your assets. (One such proof could be publishing a YouTube video boasting how your game uses AI generated art… don’t do that).

    Game studios are definitely going to publish games with AI art, they’ll just “forget” to disclose it was AI generated, and if they get some whistleblower, they’ll claim that their copyright is on their transformative use.

    If Steam wants to retract all games like that, just wait and see how many will fall.

    MJBrune,

    Some random nft greedy indie studio might publish with ai art and like about it but that’s not going to be the norm.

    jarfil,

    Hey, you just stole my business model! (jk… or am I 🤔)

    But seriously, just yesterday I saw a news blurb on TV about a studio making a game with AI-based characters like Einstein, Sagan, and similar, trained on all their published documents and public appearances. As far as I know, the Einstein real estate is a really greedy bunch of folks, charging through the nose for any material related to him… and I have my doubts they got a license for Sagan or the others either.

    Just eager to see how that one plays out.

    MJBrune,

    We’ll see. Likeness rights are also a thing.

    Deathcrow,

    There are tools that are being used to attempt to detect if a piece of work is AI-generated. If those tools say something was, it’s then on you to prove that you hand-created it.

    They don’t work. It’s total bunk.

    Even some artists are already having issues because things “look” AI-generated.

    Exactly. See above. No one can (confidently) tell which is which. There’s just educated guessing.

    Five,
    @Five@beehaw.org avatar

    They don’t work. It’s total bunk.

    I’ll go one further - they can never work. AI is trained using a system where an artist system generates art, and a gatekeeper system gives a confidence rating of how it looks human. The artist system goes through a training process until it can consistently fool the gatekeeper system. If there was a system that existed that could identify currently generated AI art, it would become the new gatekeeper system, and the artist system would only get better.

    MJBrune,

    K so you ignore the entire point in my post that the onus is on the creator to prove they have copyright and just point out it’s hard to figure out which content to steal?

    snowbell,
    @snowbell@beehaw.org avatar

    The creator has a copyright if the relevant authorities have granted the copyright registration to them, that is all they need to prove.

    Five,
    @Five@beehaw.org avatar

    Copyright isn’t registered anymore, it’s granted on creation in almost all jurisdictions that matter. It’s not like there’s documentation beyond the published work.

    computerguy,

    Even if there were tools that can dictate what is AI-generated and what not, they’d have to rely on a pattern, or on an artifact from AI-generated imagery (which, as far as I know, does not exist), and that is what can be used as proof, not the result of the tool itself being used.

    MJBrune,

    The requirement of proof is on the one making the lawsuit. So if you generate AI content and I steal it, you must prove you own the copyright. With AI-generated content, you do not own the copyright. I can take it without issue.

    computerguy,

    But then, it begs the question, how would you prove it’s an AI work? For all anyone knows, it’s my art, I made it, it’s undistinguishable from what I could make. What the court will see is, I submitted that art in the Internet, you take that, I sue you for copyright, you argue it’s an AI work, and the Court will request you to prove it really is an AI work, and perhaps launching an investigation on me to see whether I really made the AI artwork.

    Even_Adder,

    This is misinformation. You can copyright AI works.

    MJBrune,

    It’s not misinformation:

    In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.

    So this means work generated by AI is not copyrightable. The work generated by human touch is. federalregister.gov/…/copyright-registration-guid… which is the original source of your post.

    “You can not copyright works produced by AI.” is a 100% true and factual statement. You can have the AI work as a part of a bigger thing that you retain the copyright on or you can modify it and retain copyright on only the modifications but the AI work in itself is not copyrightable and your copyright on the bigger thing doesn’t supersede the lack of the copyright on the AI works.

    So in the case in question where someone used AI work to generate images for a comic book. The comic book itself is under copyright but anyone can take those images and modify them, redistribute them without credit, etc. Just like if you used AI images for textures in a game, the game is under copyright but those textures could be lifted out of the game and used elsewhere.

    Even_Adder,

    In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.

    So this means work generated by AI is not copyrightable. The work generated by human touch is. federalregister.gov/…/copyright-registration-guid… which is the original source of your post.

    There are no AI works that fit this description though. When most people think of AI works they’re thinking of the former, not the latter. So saying “Right now, AI-generated works aren’t copyrightable.” without making the distinction is misinformation designed to spread doubt.

    LastOneStanding,

    This is important. I also question the idea that copyright law might be “broken.” It might need an update, as most laws do, simply because it’s behind the times. The whole conception of this video is to spread doubt, from its sensationalist headline to the content, from which you have extracted the key points of it that wish to spread doubt. Legal systems worldwide need to catch up and develop as fast as technology and software develops now. That’s the problem. Nothing broken here. Outdated? Perhaps.

    MJBrune,

    There are no AI works that fit this description though.

    There are AI works every day that fit that description. The art in question in the comic book case was not modified and could be taken from the page and used somewhere else with the exception of the words.

    So saying “Right now, AI-generated works aren’t copyrightable.” without making the distinction is misinformation designed to spread doubt.

    You are arguing in bad faith by implying that my intent is to spread doubt through misinformation. Don’t assume things like that. You have no clue of my intentions.

    I’m not trying to “spread doubt”. I’m simply giving the information as is. If you want to have a conversation about the facts, let me know. If you are here to argue in bad faith then I can’t help you.

    Even_Adder,

    There are AI works every day that fit that description. The art in question in the comic book case was not modified and could be taken from the page and used somewhere else with the exception of the words.

    Where does the article you linked it say this?

    In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.

    The registrar does say this though.

    You are arguing in bad faith by implying that my intent is to spread doubt through misinformation. Don’t assume things like that. You have no clue of my intentions.

    I’m not trying to “spread doubt”. I’m simply giving the information as is. If you want to have a conversation about the facts, let me know. If you are here to argue in bad faith then I can’t help you.

    I’m not accusing you of arguing in bad faith or intentionally spreading information, I’m letting you know that you’re repeating the talking points of those who do.

    MJBrune, 
    
<span style="color:#323232;">There are AI works every day that fit that description. The art in question in the comic book case was not modified and could be taken from the page and used somewhere else with the exception of the words.
</span>

    Where does the article you linked it say this?

    
<span style="color:#323232;">In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.
</span>

    The registrar does say this though.

    Literally the next lines.

    In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.

    The copyright of the comic as a product is one thing, the copyright of the individual images is another.

    I’m not accusing you of arguing in bad faith or intentionally spreading information, I’m letting you know that you’re repeating the talking points of those who do.

    Well, I am letting you know you are at this point, clearly ignoring the videos, and articles, and even not reading the article you’ve linked. As the article you even linked states clearly.

    The Copyright Office weighed in for the first time last month on whether its output is copyrightable, finding Midjourney-generated images in Kris Kashtanova’s comic book “Zarya of the Dawn” could not be protected, though Kashtanova’s text and unique arrangement of the book’s elements could.

    So you could go take the images out of the comic book and reuse them because they are not copyrighted.

    Even_Adder,

    So you could go take the images out of the comic book and reuse them because they are not copyrighted.

    You’re begging the question by assuming such content hasn’t been modified and could be taken in the first place. How would you know the content you’re eyeing is usable without violating any rights or laws?

    Copyright law is one big “It depends” making sweeping statements like made and the headline of the article you linked are oversimplifying the issue and presenting a false dichotomy of a much more nuanced issue. The Reuters article I linked presents much less biased coverage that doesn’t gloss over important facts.

    ragusa,

    It really isn’t, because copyright law, in basically all countries AFAIK, requires a human to have made the work. So you do not hold copyright for works generated by an AI. All of the sources agree on this.

    Even_Adder,

    Humans using the machines have always been the copyright holders of any qualifying work they create.

    ragusa,

    Sure, when they are creating the creative aspect of the work, not when the machine does. A work of a human can attain copyright, a work by machine cannot.

    Even_Adder,

    I’m glad we agree.

    p03locke, (edited )
    @p03locke@lemmy.dbzer0.com avatar

    Two important videos from two different musicians that are highly relevant:

    Copyright is completely broken and only benefits large corporations with the lawyers to enforce it. It is nonsensical and the constant extensions to US copyright have diluted public domain and open-source works. In fact, the constant and rampant breaking of copyright and stretching the definitions of fair use is a side effect of the public’s lack of options in the public domain space.

    K_REY_C,

    Related oldie (but good): Everything is a Remix

    millie, (edited )

    The article really oversimplifies things.

    In my use case, for example, I do in fact own the copyright to my own art, as a significant portion of it was created by traditional methods using AI as one more tool, not simply by telling it what to make and rolling with it.

    III. The Office’s Application of the Human Authorship Requirement

    As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “whether the `work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.” [23]

    In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author’s “own original mental conception, to which [the author] gave visible form.” [24]

    The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25]

    This is necessarily a case-by-case inquiry.

    If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26]

    For example, when an AI technology receives solely a prompt [27]

    from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[28]

    For example, if a user instructs a text-generating technology to “write a poem about copyright law in the style of William Shakespeare,” she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style.[29]

    But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[30]

    When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31]

    As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]

    In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” [33]

    Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34]

    In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.[35]

    This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image,[36]

    and a musical artist may use effects such as guitar pedals when creating a sound recording. In each case, what matters is the extent to which the human had creative control over the work’s expression and “actually formed” the traditional elements of authorship.[37]

    Rentlar,

    I’m not a lawyer, this is my personal opinion which has no basis in legal fact. Use my words at your own peril.

    Tom’s video goes very nicely in-depth, and makes a good argument for why a lot of media, memeing and things in content do not fall under fair use and are considered copyright infringement in US/UK law.

    A judge could just as well make a ruling that widens the understanding of fair use in copyright law as they could restrict it in favour of copyright owners. Big firms like Sony do court shop so they will try to find somewhere that would more likely rule in their favour. Just saying it might not be entirely beneficial even for companies with huge coffers to try to define where the line is for fair use through a suit.

    Especially for copyrights owned by businesses that have gone under or just completely orphaned copyrighted works, I think the law should be changed such that those rights return to the original creator or the work enters the public domain. I agree with Tom in general that copyright ought to last less than 50 years, ideally 20, but big entertainment ain’t gonna let that happen anytime soon.

    Courts and lawyers and the whole system being so trigger-happy with lawsuits in the US just makes my head spin. It is the “land of the fee” after all, the team with big bucks often wins out nowadays.

    In any case, I can’t wait for next year for it to be legal to draw a “fanart” Steamboat Willie sporting a very large willy.

    nix,
    @nix@merv.news avatar

    Artists and scientists can make a living of their work without copyright. CC BY SA and creative commons in general doesnt prevent you from selling your work and people can support art/science without it being behind paywalls. We need to move to a culture where we don’t try to enforce everything with the threat of jail/punishments and move to a culture where we support things we love because we want the creators to be able to continue creating without worry

    MJBrune,

    Artists and scientists can make a living of their work without copyright. CC BY SA and creative commons in general doesnt prevent you from selling your work and people can support art/science without it being behind paywalls.

    Honestly, show me a large-scale work that was CC BY SA that made money. A book, movie, or game that was funded only by those donating. They are extremely rare. Especially as I know a few people who have released GPL, freeware, and CC BY SA games and have made far less than what they spent on the project. It doesn’t prevent you from trying to ask for what are essentially donations but I can tell you with certainty you get far less money asking for donations than you do selling.

    We need to move to a culture where we don’t try to enforce everything with the threat of jail/punishments and move to a culture where we support things we love because we want the creators to be able to continue creating without worry

    I absolutely agree, just don’t take away artists’ ability to live first. Move towards that culture first, then get rid of the tools that currently make artists money. Copyright, right now, is almost the sole mechanic in society that allows people to make money off their art on a real scale.

    nix,
    @nix@merv.news avatar

    How does copyright currently help small artists? They sue someone for violating their copyright? You dont need to copyright your game to sell it on steam, itch, etc.

    MJBrune,

    You absolutely need copyrights to sell your game on Steam or itch. The copyright doesn’t need to be actively registered but that’s because you have implicit copyright to the things you create. That said you still need copyright and it’s why Valve is no longer selling games with AI-generated content. Because they can’t prove the content they are selling belongs to the people they are selling it on the behalf of.

    Copyright helps small artists by protecting them. You can easily take someone to small claims. Lawyers work pro bono if they are confident in the case. Copyright helps by enforcing that what small artists make is truly theirs. I was working on a small indie game called Squad in 2016 in which someone stole our game assets. A simple notice from our retainer lawyer did the trick.

    adespoton,

    Because they can’t prove the content they are selling belongs to the people they are selling it on the behalf of.

    Sorry, this better not be the reason. Book publishers sell books that are in the public domain all the time. You can publish public domain works on Steam too.

    AI generated content is in the public domain.

    I’m pretty sure Steam doesn’t want to publish it because they don’t know the provenance of the training material and don’t want to support people using unlicensed works in their training material for their AI model.

    That’s not about copyright directly, it’s about choosing what sort of projects to support and publish.

    MJBrune,

    Yes, the public domain belongs to everyone.

    I’m pretty sure Steam doesn’t want to publish it because they don’t know the provenance of the training material and don’t want to support people using unlicensed works in their training material for their AI model.

    That’s correct. They can’t confirm the training data didn’t commit copyright infringement.

    Something in the public domain means everyone essentially has the right to copy it in any form. Thus you still need the copyrights to distribute on Steam, even if that copyright is public domain.

    That’s not about copyright directly, it’s about choosing what sort of projects to support and publish.

    I don’t get what you mean by that because it’s entirely about the copyrights of the content and if the owner is allowed to distribute them.

    adespoton,

    If something is in the public domain, there is no copyright. That’s what public domain means. Now, someone could try to place something into the public domain incorrectly that still has someone else’s copyright claim on it, but LLMs don’t do that (usually): a work created via an LLM is in the public domain. Nobody reserves any rights.

    Because there are no rights reserved, there’s no copyright issues.

    BUT that doesn’t mean that infringement hasn’t already been committed by the person who created the training set IF you stand by the argument that a training set has no right to include a work unless it’s in the public domain or permission has been granted by any rights holders.

    That last bit I covered earlier; it is a philosophical stance people take, but it’s not the only one, and as of now it has no legal backing. Others claim fair use, which pre-empts any copyright claims. And remember, this is about creating the training set and NOT about generative works, which are in the public domain.

    MJBrune,

    Others claim fair use, which pre-empts any copyright claims.

    Yeah, in the end, that’s going to come down to what is transformative work and if transformative work can be done solely by a tool.

    this is about creating the training set and NOT about generative works, which are in the public domain.

    They are only in the public domain if they are transformative works. Otherwise, they are derived works and subject to the original copyright and thus copyright infringing works.

    If something is in the public domain, there is no copyright. That’s what public domain means.

    Sure, everyone has the right to copy it. There are no copyrights given out to one person. At this point, that’s just semantics.

    Now, someone could try to place something into the public domain incorrectly that still has someone else’s copyright claim on it, but LLMs don’t do that (usually): a work created via an LLM is in the public domain. Nobody reserves any rights.

    That’s the argument though. LLMs potentially are attempting to put works into the public domain by copying them, creating works based on them, then because it’s not made by a human, placing them in the public domain. If the works an LLM is seen as derived from the training set and the training set is copyrighted content then an LLM is creating copyright infringing works and attempting to place them into the public domain.

    yA3xAKQMbq,

    Yeah, but honestly that doesn’t work too well either, does it.

    In my opinion, in the majority of cases copyright only helps those who are already famous and the companies that own the copyright*.

    I don’t know much about books (but from what I have read, authors here also get scraps), but the film industry is all over the media right now, so I think everybody is aware that even actors of really successful shows get literal pennies for their work: newyorker.com/…/orange-is-the-new-black-signalled…

    I do know a lot about (parts of) the music industry to confidently say: it’s the same.

    Sure, you have some people who are doing well, extremely well as a matter of fact, but the vast majority of artists have a really hard time getting by. And I’m not talking about the local band playing in the pub with nobody listening, I’m talking about people who tour around the world and play in front of thousands of people.

    And unless it’s some really major case of infringement (like taking a song and publish it as your own) they’re neither helped nor do they care much about copyright.

    Who does care is, e.g., the German GEMA, a company who watches public performances of copyrighted work, so if you’re playing a song from another band, or playing copyrighted music in a mall, you have to tell them. Allegedly they’re there to ensure fair compensation of artists, in reality they only pay themselves most dearly.

    *) This is a bit complicated for me to write about, because under German law you have a creator’s right, which you cannot ever sell or lose, and a copyright, which allows temporary or permanent reproduction of your work. „Stealing“ a song, as mentioned above, wouldn’t be a copyright infringement, but a creator’s right infringement.

    honey_im_meat_grinding,

    Thanks for pointing out the difference in Germany with respect to copyright and author ownership/rights! That’s really interesting, and the foundation could be used to extend rights for artists vs the power corporations have over their works - e.g. no license exclusivity as that seems to go against the spirit of the law.

    MJBrune,

    Absolutely, which goes to show we probably need tougher copyright laws. Copyright laws that aren’t transferrable like creators’ rights. Right now people are trying to weaken copyright law altogether. I had someone in another conversation say that copyright laws should be thrown away entirely so we should just essentially treat them like they aren’t there.

    That said copyright laws also help those who can’t afford lawyers. I’ve seen indie game developers threaten the copyright of a studio to get paid. Saying that the copyright was transferred on payment, which was in the contract. The threat alone got them paid because the larger studio knew that if pressed, this would be an open-and-shut case.

    yA3xAKQMbq, (edited )

    No, we absolutely do not need tougher laws, we already have ridiculously tough laws.

    The problem is that people can not and probably will never agree on what is actually copyrighteable. And if you look into the respective laws you’ll always find rubber words, like „elements of originality“, in Germany it’s „threshold of creation“.

    I pointed out two cases in some other comment here, but here are two more:

    European newspaper publishers (lead, of course, by the Germans) established a EU law that it’s infringing their copyright if you take a snippet of a news article, even if you directly link to the newspaper in question. They were salty about google doing that, so they made it a law. Then google said, „well fuck off“ and threw them out. I don’t know what the current status is, I think the publishers realized they fucked up and now everybody acts like nothing happened or something.

    Or: there’s a legal dispute going on between the German hip-hop producer Moses Pelham and the band Kraftwerk, about a 2 second (!) Kraftwerk sample Pelham used in 1997 (!). This thing ended up IIRC five times in front of Germany’s highest civil court, once in front of Germany’s constitutional court (freedom of art, you know), and a few years ago it was handed to the EU court, which handed it back and the last thing I heard is that they need to bring it to the EU court again because they still have questions… And all of this revolves mainly around the question „when is it okay to sample someone else’s work?“. For 25 years courts are trying to find a definition, and every decision is full of ridiculous money quotes.

    Edit: I guess it has long passed the point of being a legal dispute, it’s become more like an extremely elaborate discussion of platonic idealism or something.

    So, no, I disagree, we need less laws. And we can do that. Take science: yeah, we have creator’s right, but it’s treated as a moral failure to outright plagiarise someone without attribution, and you will lose your „scientist“ badge. Other than that reusing other people’s work is not just okay but a fundamental principle of science, you know, „standing on the shoulders of giants“, like that.

    We could treat art the same, yet somehow we don’t.

    MJBrune,

    The science industry is filled with patents and the inability to commercially reproduce works. The fundamental difference is how art is paid for as a product and science is licensed under patents to companies. Would you rather have a system where you could draw with pink but you need to pay the pink patent license holder?

    Also, I am saying stronger copyright laws for the humans creating the works. I’d argue extremely strong copyrights would be those which do not allow a corporation to actively hold copyright but instead licenses to redistribute from individuals.

    yA3xAKQMbq, (edited )

    Ah, patents, finally someone opens the next pandora’s box… 😅

    Well, that’s a bit what someone else tried to argue with the idea vs implementation of an idea argument.

    But it’s different here, you cannot have a patent on „science“. You cannot patent the theory of relativity or Newton‘s laws of motion.

    What you can patent is a product or a process or a technology which uses science, so you can have a patent on some gps technology which uses Einstein‘s work. Nobody gave old Albert a dime for using his theory though (okay he was also already dead).

    But how would you like to transfer that to music? Do you want to patent the performance but the composition (the science) can be „quoted“ by anyone? Not sure where you’re going with this.

    And btw you are already paying someone to be able to use the colour pink. You cannot patent the colour itself, but you can patent the product and the process. Producing reliable colours is an industry, they’re not for free.

    Edit: we also have many, many areas in science where creating a patent based on the results is not the motivation nor expected because in many areas it’s not even a possibility.

    MJBrune,

    The core of my argument is that art is a product, and science is funded through the ability to market it. Ideas aren’t patentable but science is not just “ideas”. Science doesn’t mean anything unless you apply it. Applied Science is implementations that are patentable. It’s why concepts like game mechanics are patentable.

    Art fundamentally makes money differently than science does. This is why things like scientists freely offer papers describing studies and research while making money off of implementations of that research. In digital art, colors are free. The issue is then the monitors and display of that color change depending on implementation. That implementation isn’t free. Color systems in digital art are the like the research side of science where the implementation of it is a copyrighted artwork. The applied art created a product just like the science side. They both work the same.

    yA3xAKQMbq,

    Yeah, that’s just plain wrong. Science isn’t just engineering, you know. Again, outside of the actual „applied sciences“ (engineering, pharmaceuticals, etc) rarely anyone produces something that can be marketed, and even if so, it’s by chance. Einstein did not develop his theory of relativity to „market it“. Many areas are only producing results to further our understanding of the world, and we as a society pay them to do so.

    MJBrune,

    we as a society pay them to do so.

    Yeah, how much did Einstein make when writing the paper on special relativity?

    yA3xAKQMbq,

    I thought science is funded by the ability to market it, what is it now, make up your mind 🤪

    Einstein had a job at a Federal Department. Which is unusual, as a matter of fact (so be free take someone else if you like as an example), because – I don’t know if you have heard about this – usually science happens at something called a university. Which is payed by something called taxes.

    And now please go and waste someone else‘s time, clown

    nix,
    @nix@merv.news avatar

    Copyright helps people who can’t afford lawyers? What? If they can’t afford the lawyers then they’re essentially bluffing and hoping the company doesnt want to risk a lawsuit. If the company decided to call the bluff then the person who can’t afford the lawyers not better pray the lawsuit covers their lawyer fees or they will be in a ton of debt.

    Copyright protects corporations and people who are rich enough to afford lawsuits.

    We dont need more copyright, we need more tools to find the original source of art (reverse image search type tools) and tools/culture that make it easier for artists to get paid and supported by fans

    MJBrune,

    You don’t need a lawyer to take someone to court. Also, a lot of states have small claims courts which don’t allow lawyers. I do agree that it’s not currently proportional but if you watched the video, the UK is starting a way to solve this with smaller court systems that can be used to fight false copyright DMCAs and take on smaller cases. The US has small claims court which honestly should probably be simply capped a lot higher than it is.

    EnglishMobster,
    EnglishMobster avatar

    Well... maybe.

    Artists are able to work off of commissions, assuming that there is a demand for their art. (Getting that demand is the tricky part.) If people don't want their work on its own, then they have to work at a corporation - maybe making concept art, or drawing animation cels, or whatever. None of that art is owned by them; it's typically in the contract the artist signs when they become employed. Anything they make belongs to the corporation.

    I used to work for Disney - in their theme parks, not as an artist - and even my employment contract said that any idea I had while Disney was my employer was property of Disney. Literally, if I had an idea on the job, I could not monetize it. If I thought of an idea for a video game or novel or movie, Disney owned that idea just because they were my employer.

    Now. Could they enforce that? No way. But they could try, and as Tom points out then it doesn't matter if I'm in the write or not - Disney has expensive lawyers, I do not.

    Scientists need grant money to do science. You have to convince a panel of experts that you have a good idea, and that your idea is worth throwing grant money at. Then you use that grant money to pay yourself and your assistants while you perform an experiment. This grant money can be from a university... or it could be from a corporation doing research and development for new concepts or ideas. If you make a discovery, the corporation might be able to patent that, since you were on their payroll at the time.

    Making things Creative Commons doesn't magically make money appear. When you get paid by someone wanting to publish your work, they are specifically buying out your copyright on that work - they can do whatever they wish with it after. (Famously, this is why the first Harry Potter book is called "Sorcerer's Stone" in the US, because the publisher owned the copyright and changed the name.)

    Creative Commons, therefore, is completely at odds with traditional publishing, since you can't sell your copyright to them. You can still self-publish, of course... but that's a whole can of worms. Not to mention that it's incredibly easy these days to have AI churn out 80k words of BS and sell it on Amazon for $1.99. You don't need many sales to break even.

    nix,
    @nix@merv.news avatar

    But the problem with Disney owning your work is because of copyright. Disney makes you sign a contract that says they own the copyright of whatever you do and they have the lawyers to sue you. Copyright is used by these corporations to sue people into submission I dont see how copyright protects small artists

    BrikoX,
    @BrikoX@lemmy.zip avatar

    The way I see it AI is not replacing artists, it’s expanding access. People who didn’t hire an artist before, now can use an AI tool to generate something to add value to their creation (if they didn’t hire it in the first place, it’s not replaced anyone). And people who hired artists for originality and creativity will continue to do so. Biggest part of why someone hires an artist is the creative process and their ability to come up with the ideas.

    The copyright was broken long before AI became mainstream, AI just shines a bright light on it. The only thing I’m afraid of is that whatever changes to the laws will be made will make it worse for consumers not better.

    TwilightVulpine,

    Seems like wishful thinking to assume that technology being used to replicate artists' styles is not going to affect their livelihood. Unlike large media companies, even a few lost clients can make a huge difference for smaller artists. Then there's also upcoming artists, if they aren't already well-known and better than AI, how are they going to get a foothold on an artistic career? That might kill their chances before they get anywhere.

    KKriegGG,

    Upvoted because Tom Scott

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