We Asked A.I. to Create the Joker. It Generated a Copyrighted Image.::Artists and researchers are exposing copyrighted material hidden within A.I. tools, raising fresh legal questions.
We Asked A.I. to Create the Joker. It Generated a Copyrighted Image.::Artists and researchers are exposing copyrighted material hidden within A.I. tools, raising fresh legal questions.
“Generate this copyrighted character”
“Look, it showed us a copyrighted character!”
Does everyone that writes for the NYTimes have a learning disability?
The point is to prove that copyrighted material has been used as training data. As a reference.
If a human being gets asked to draw the joker, gets a still from the film, then copies it to the best of their ability. They can’t sell that image. Technically speaking they’ve broken the law already by making a copy. Lots of fan art is illegal, it’s just not worth going after (unless you’re Disney or Nintendo).
As a subscription service that’s what AI is doing. Selling the output.
Held to the same standards as a human artist, this is illegal.
If AI is allowed to copy art under copyright, there’s no reason a human shouldn’t be allowed to do the same thing.
Proving the reference is all important.
If an AI or human only ever saw public domain artwork and was asked to draw the joker, they might come up with a similar character. But it would be their own creation. There are copyright cases that hinge on proving the reference material. (See Blurred Lines by Robin Thick)
The New York Times is proving that AI is referencing an image under copyright because it comes out precisely the same. There are no significant changes at all.
In fact even if you come up with a character with no references. If it’s identical to a pre-existing character the first creator gets to hold copyright on it.
This is undefendable.
Even if that AI is a black box we can’t see inside. That black box is definitely breaking the law. There’s just a different way of proving it when the black box is a brain and when the black box is an AI.
But that’s just a lie? You may draw from copyright material. Nobody can stop you from drawing anything. Thankfully.
Nobody can stop you.
But because our copyright laws are so overreaching you probably are breaching copyright.
It’s just not worth a company suing you for the financial “damages” they’ve “suffered” because you drew a character instead of buying a copy from them.
Certain exceptions exist, not least “De Minimus” and education.
You can argue that you’re learning to draw. Then put that drawing in a drawer and probably fine.
But’s pretty clear cut in law that putting it even on your own wall is a copyright breach if you could have bought it as a poster.
The world doesn’t work that way but suddenly AI doing what an individual does thousands of times, means thousands times the potential damage.
Just as if you loaded up a printing press.
De Minimus no longer applies and the actual laws will get tested in court.
Even though this isn’t like a press in that each image can be different, thousands of different images breaking copyright aren’t much different to printing thousands of the same image.
No that’s just not how the law is. Now it’s just two lies
Unfortunately I have studied this.
So we’ll just have to decide to agree to disagree and hope neither ends up on the wrong side of the law.
Like I say. Copyright is based upon damage to the copyright holder. It’s quite obvious when that happens and it’s hard to do enough as an individual to be worth suing.
But making a single copy without permission, without being covered by any exemptions, is copyright infringement.
Copy right. The right to copy.
You don’t have it unless you pay for it.
In my country we can draw anything and not get sued or break the law. I think that’s pretty good too. It’s when you sell stuff you get into those things.
If your country is a signatory to the international copyright treaties with most of the Anglosphere (Like the EU, US, AUS, NZ). Then that is not correct.
You cannot draw anything.
It’s just never worth suing you over.
A crime so small it’s irrelevant is almost a legal act. But it’s not actually a legal act.
I don’t know what to say. I’m in Sweden. We can draw things for ourselves and no international international company may sue us
It’s illegal to have crimes so small and threat to take personal drawings in fact would break several other Swedish laws
Much like @Ross_audio, I have studied this intently for business reasons. They are absolutely right. This is not a transformative work. This is a direct copy of a trademarked and/or copyrighted character for the purpose of generating revenue. That’s simply not legal for the same reason that you can’t draw and sell your own Spider-Man comics about a teenager that gains the proportional strength and abilities of a spider, but you can sell your own Grasshopper-Man comics about a teenager that gains the proportional strength and abilities of a grasshopper. As long as you use your own designs and artwork. Because then it is transformative. And parody. Both are legal. What Midjourney is doing is neither transformative nor parody.
Yeah it would not be strange to me if that’s how it works in the states, but I think drawing something (not selling, the example was not monetary) does not have international reach
Midjourney Inc. is in San Francisco, so U.S. law is what applies here.
The example is someone drawing copyright for learning and not selling it
Tough question is, can a tool be infringing anything?
Although I’d see a legal case if AI companies were to bill picture by picture, but now they are just billing for a tool subscription.
Still, would Microsoft be liable for my copy-pastes if they charged a penny every time I use it, or am I, if I sell a art piece that uses that infringing image?
AI could be scraping that picture from anywhere.
Who created this image in your view then, who is liable?
Can a tool create? It generated.
Anyway, in case like this, is creation even a factor in liability?
In my opinion one who gets monetary value first from the piece should be liable.
NYTimes?
So by that logic. I prompted you with a question. Did I create your comment?
I used you as a tool to generate language. If it was a Pulitzer winning response could I gain the plaudits and profit, or should you?
If it then turned out it was plagiarism by yourself, should I get the credit for that?
Am I liable for what you say when I have had no input into the generation of your personality and thoughts?
The creation of that image required building a machine learning model.
It required training a machine learning model.
It required prompting that machine learning model.
All 3 are required steps to produce that image and all part of its creation.
The part copyright holders will focus on is the training.
Human beings are held liable if they see and then copy an image for monetary gain.
An AI has done exactly this.
It could be argued that the most responsible and controlled element of the process. The most liable. Is the input of training data.
Either the AI model is allowed to absorb the world and create work and be held liable under the same rules as a human artist. The AI is liable.
Or the AI model is assigned no responsibility itself but should never have been given copyrighted work without a license to reproduce it.
Either way the owners have a large chunk of liability.
If I ask a human artist to produce a picture of Donald Duck, they legally can’t, even though they might just break the law Disney could take them to court and win.
The same would be true of any business.
The same is true of an AI as either its own entity, or the property of a business.
I’m not non-sentient construct that creates stuff.
…and when the copyright law was written there was no non-sentient things gererating stuff.
There is literally no way to prove whether you’re sentient.
Decart found that limitation.
The only definition in law is whether you have competency to be responsible. The law assumes you do as an adult unless it’s proven you don’t.
Given the limits of AI the court is going to assume it to be a machine. And a machine has operators, designers, and owners. Those are humans responsible for that machine.
It’s perfectly legitimate to sue a company for using a copyright breaking machine.
You almost seem like you get the problem, but then you flounder away.
Law hasn’t caught up with the world with generative programs. A.I will not be considered sentient and they will have this same discussion in court.
“I didnt kill him, officer, my murder robot did. Oh, sure, I built it and programmed it to stab jenkins to death for an hour. Oh, yes, I charged it, set it up in his house, and made sure all the programming was set. Ah, but your honor, I didnt press the on switch! Jenkins did, after I put a note on it that said ‘not an illegal murderbot’ next to the power button. So really, the murderbot killed him, and if you like maybe even jenkins did it! But me? No, sir, Im innocent!”
How is this example relevant? You created the programming.
And someone created the AI programming too.
Then someone trained that AI.
It didn’t just come out of the aether, there’s a manual on how to do it.
Yes, but in
yourprevious exampleyouperson specifically created a machine to stab a specific person.Example would be apt, if you created a program that generates programming for industrial machines to insert things in to stuff and then you uploaded a generated program without checking the code and it stabbed some random guy.
They are showing that the author of the tool has comitted massive copyright infringement in the process construction of the tool.
…unless they licensed all the copyright works they trained the model on. (Hint: they didn’t, and we know they didn’t because the copyright holders haven’t licensed their work for that purpose. )
It doesn’t matter if a company charges or not for anything. It’s not a factor in copyright law.
Is this really true? Breaking the law implies contravening some legislation which in the case of simply drawing a copyrighted character, you wouldn’t be in most jurisdictions. It’s a civil issue in that if some company has the rights to a character and some artist starts selling images of that character then whoever owns the rights might sue that artist for loss of income or unauthorised use of their intellectual property.
Regardless, all human artists have learned from images of characters which are the intellectual property of some company.
If I hired a human as an employee, and asked them to draw me a picture of the joker from some movie, there’s no contravention of any law I’m aware of, and the rights holder wouldn’t have much of a claim against me.
As a layperson, who hasn’t put much thought into this, the outcome of a claim against these image generators is unclear. IMO, it will come down to whether or not a model’s abilities are significantly derived from a specific category of works.
For example, if a model learned to draw super heros exclusively from watching marvel movies then that’s probably a copyright infringement. OTOH if it learned to draw super heroes from a wide variety of published works then IMO it’s much more difficult to make a case that the model is undermining the right’s holder’s revenue.
Copyright law is incredibly far reaching and only enforced up to a point. This is a bad thing overall.
When you actually learn what companies could do with copyright law, you realise what a mess it is.
In the UK for example you need permission from a composer to rearrange a piece of music for another ensemble. Without that permission it’s illegal to write the music down. Even just the melody as a single line.
In the US it’s standard practice to first write the arrangement and then ask the composer to licence it. Then you sell it and both collect and pay royalties.
If you want to arrange a piece of music in the UK by a composer with an American publisher, you essentially start by breaking the law.
This all gives massive power to corporations over individual artists. It becomes a legal fight the corporation can always win due to costs.
Corporations get the power of selective enforcement. Whenever they think they will get a profit.
AI is creating an image based on someone else’s property. The difference is it’s owned by a corporation.
It’s not legitimate to claim the creation is solely that of the one giving the instructions. Those instructions are not in themselves creating the work.
The act of creating this work includes building the model, training the model, maintaining the model, and giving it that instruction.
So everyone involved in that process is liable for the results to differing amounts.
Ultimately the most infringing part of the process is the input of the original image in the first place.
So we now get to see if a massive corporation or two can claim an AI can be trained on and output anything publicly available (not just public domain)without infringing copyright. An individual human can’t.
I suspect the work of training a model solely on public domain will be complete about the time all these cases get settled in a few years.
Then controls will be put on training data.
Then barriers to entry to AI will get higher.
Then corporations will be able to own intellectual property and AI models.
The other way this can go is AI being allowed to break copyright, which then leads to a precedent that breaks a lot of copyright and the corporations lose a lot of power and control.
The only reason we see this as a fight is because corporations are fighting each other.
If AI needs data and can’t simply take it publicly from published works, the value of licensing that data becomes a value boost for the copyright holder.
The New York Times has a lot to gain.
There are explicit exceptions limited to copyright law. Education being one. Academia and research another.
All hinge into infringement the moment it becomes commercial.
AI being educated and trained isn’t infringement until someone gains from published works or prevents the copyright holder from gaining from it.
This is why writers are at the forefront. Writing is the first area where AI can successfully undermine the need to read the New York Times directly. Reducing the income from the intellectual property it’s been trained on.
This isn’t the issue. The copyright infringement is the creation of the model using the copywrite work as training data.
All NYT is doing is demonstrating that the model must have been created using copywrite works, and hence infringement has taken place. They are not stating that the model is committing an infringement itself.
I agree, but it is useful to ask if a human isn’t allowed to do something, why is a machine?
By putting them on the same level. A human creating an output vs. an AI creating an output, it shows that an infringement has definitely taken place.
I find it helpful to explain it to people as the AI breaching copyright simply because from that angle the law can logically be applied in both scenarios.
Showing a human a piece of copyright material available to view in public isn’t infringement.
Showing a generic AI a piece of copyright material available to view in public isn’t infringement.
The infringing act is the production of the copy.
By law a human can decide to do that or not, they are liable.
An AI is a program which in this case is designed to have a tendency to copy and the programmer is responsible for that part. That’s not necessarily infringement because the programmer doesn’t feed in copyright material.
But the trainer showing an AI known to have a tendency to copy some copyright material isn’t much different to someone putting that material on a photocopier.
I get many replies from people who think this isn’t infringement because they believe a human is actually allowed to do it. That’s the misunderstanding some have. The framing of the machine making copies and breaching copyright helps. Even if ultimately I’m saying the photocopier is breaching copyright to begin with.
Ultimately someone is responsible for this machine, and that machine is breaking copyright. The actions used to make, train, and prompt the machine lead to the outcome.
As the AI is a black box, an AI becomes a copyright infringing photocopier the moment it’s fed copyright material. It is in itself an infringing work.
The answer is to train a model solely on public domain work and I’d love to play around with that and see what it produces.
That’s called fair use. It’s a non-issue.
It’s not selling that image (or any image), any more than a VCR is selling you a taped version of Die Hard you got off cable TV.
It is a tool that can help you infringe copyright, but as it has non-infringing uses, it doesn’t matter.
Then who created this image in your view?
That’s irrelevant, the issue is whether the machine is committing a crime, or the person
Machines aren’t culpable in law.
There is more than one human involved in creating and operating the machine.
The debate is, which humans are culpable?
The programmers, trainers, or prompters?
The prompters. That is easy enough. If I cut butter with a knife it’s okay, if I cut a person with a knife - much less so. Knife makers can’t be held responsible for that, it’s just nonsense.
If you try to bread with an autonomous knife and the knife kills you by stabbing you in the head. Is it solely your fault?
That depends on whether the autonomous knife is designed dangerously and it’s a common occurrence, or whether I was being a moron and essentially rigged it to stab me, akin to asking for copyright material from an AI and getting it (scene from a movie, characters part of intellectual property etc)
If someone copies a picture from a cartoon who created it?
What point do you think youre making? The answer to this question supports their point.
I wasn’t arguing with them lol just wondered their opinion.
It does feel weird to me that if someone draws a copy of something people don’t think they’ve created anything. That somehow the original artist created it.
The person who created the cartoon in the first place.
Try painting a Disney character on the wall of a waiting room.for children.
https://www.theguardian.com/uk-news/2023/jul/07/robert-jenrick-has-cartoon-murals-painted-over-at-childrens-asylum-centre
So the copyer didn’t create anything? Odd way to look at it to me.
The copier didn’t create any Intellectual property. They copied it.
Copy right. The right to copy.
It’s fairly fundamental.
VCR makers do not claim to create original programming.
Why does that matter?
Because they aren’t doing anything to violate copyright themselves. You might, but that’s different. AI art is created by the software. Supposedly it’s original art. This article shows it is not.
It is original art, even the images in question have differences, but it’s ultimately on the user to ensure they do not use copyrighted material commercially, same as with fanart.
If I draw a very close picture to a screenshot of a Mickey Mouse cartoon and try to pass it off as original art because there are a handful of differences, I don’t think most people would buy it.
What relevance does this have to AI?
The crux is that they went “draw me a cartoon mouse” and Midjourney went “here is Disney’s Mickey Mouse™”. A simple prompt should not be able to generate that specific of an image. If you want something specific, you should need to specific it, otherwise the AI failed to generalize or is somehow heavily biased towards existing images.
Or you do? The point is that these machines are just regurgitating the copyrighted data they are fed, and not actually doing all that transformative work their creators claim in order to legally defend feeding them work they dont have the rights to.
Its recreating the images it was fed. Not completing the prompt in unique and distinct ways. Just taking a thing it ate and plopping it into your hands.
It doesnt matter that you asked it to do that, because the whole point was that it “isnt supposed to” do that in order for them to have the legal protection of feeding it artwork they didnt pay the rights to.
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I’m pretty pro AI but I think their point was that the generated images were near identical to existing images. For example, they generate one from Dune that even has whisps of hair in the same place.
They just didn’t use a clean model, this is actually so frustrating to read this many “experts” talk about stable diffusion… It’s really not hard to teach a model to draw a specific image. This is like running people over with a car going LOOK! It’s a killing machine!
It just proves that there is not actual intelligence going on with this AI. It’s basically just a glorified search engine that claims the work of others as it’s own. It wouldn’t be as much of a problem if it attributed it’s sources, but they can’t do that because that opens them up to copyright infringement lawsuits. It’s still copyright infringement, just combined with plagiarism. But it’s claimed to be a creation of “AI” to muddy the waters enough to delay the inevitable avalanche of copyright lawsuits long enough to siphon as much investment dollars as possible before the whole thing comes crashing down.
Calling anything we have now “AI” is a marketing gimmick.
There is not one piece of software that exists currently that can truly be labelled AI, it’s just advertising for the general population that doesn’t educate themselves on current computing technology.
Yeah I agree with this for the most part. Though I have some suspicions that some of the machine learning algorithms used by social media have been exhibiting some emergent behavior. But given that their directive is to sell as many ads as possible, and the fact that advertising is basically just low level emotional manipulation to convince people to buy shit, any emergent behavior would be surrounding emotionally manipulating people.
Kinda getting into tin foil hat territory here, but developing AI under the direction of marketing assholes doesn’t seem like it’s going to go anywhere good.
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