Additionally, even if there's no copyright, the terms of service may still apply separately (see OpenAI disallowing training a competitor model on output from OpenAI models)
I would say it doesnt look good at the moment for to try and enforce ownership of something ai generated, it would be an uphill battle, and the default/null position would be that the art is free to use, and unprotected by government.
No, they haven't.
They've said that if the only human input is a text prompt, then it lacks the required human creativity to be eligible for copyright protection.
Aren't contract clauses that relate to the distribution of material preempted by the copyright act?
Generally, no. It's possible for there to be interactions in some cases, but the Copyright Act wouldn't generally preempt contract terms. (Its closer to the other way around, in that—to the extent copyright rights exist that could otherwise be enforced—a relevant contract will generally limit enforcement and recover to breach of contract rather than bare copyright action.)
For example you and I could enter into a contract for me to use AI to generate something that is not copyrightable from data you provide and give you a copy of that thing. There would in general be no legal problem if the contract included restrictions on what you could do with that thing, including restrictions on distributing it.
Part of the quid pro quo of a contract can be one party giving up a right to do something that they would normally have a right to do.
Now suppose the contract did allow you to make and distribute copies as part of your product. Someone else starts making copies of those copies you distributed and distributing those copies.
There is no contract between me and that person, so I would not be able to stop them. I've got no contract with them, and the thing is not copyrighted, so there's nothing that prevents them from copying it.
The only real problem here is that the original creators of the art that these AIs were trained on didn’t consent to this type of use and aren’t getting any kind of attribution or payment. If they were recognized and compensated, there’d be really nothing to talk about here - any work could be copyrighted, with whatever derivative status the AI bakes in.
however if there were large nations in which the law was still in flux or unclear, or one wanted to generate new images on the fly without fear of rate-limiting or refusal of service, then one would potentially wish to work out an arrangement.
We don't have precedent here. Whether a person using a website with a generative AI tool counts as having a non-human creator isn't clear, and it seems to me like the answer is that it does have a human creator. Using a horse-hair brush to paint a painting doesn't mean that the painting was created by a horse and isn't subject to copyright. We'll have to find out eventually whether over a dozen settings, some with a gazillion options, and multiple freeform inputs counts as 'not created by a human'.
The horse hair example is nonsense. One might argue that artists take inspiration from other artists to make the argument that what the AI is doing is fine. But the ai is actually only capable of blending what it’s been trained on, whereas an artist is not similarly limited. And this is how the horse hair sample is stupid.
No, there was a recent case where someone tried to claim an AI as an author for copyright and themselves as owner via work for hire, where it was ruled invalid because AI can’t be an author under copyright law; the ruling was explicit that it was not addressing copyrightability by humans of images they create using an AI generator as a tool, only the claim of copyright with AI as the author.
No.
> One might argue that artists take inspiration from other artists to make the argument that what the AI is doing is fine.
This doesn't seem to address what I took to be the relevant part of IP law - that non-human authors don't create copyrighted works. It was a reductio ad absurdum for minimal non-human involvement. It's probably not the case that a monkey stealing your camera and taking a selfie creates a copyrighted work. It's probably the case that a frog triggering a motion sensor you set up for nature photography does. It's certain painting normally with a horsehair brush does.
Your remarks seem to make some sort of moral appeal, but I'm not sure how it ties into the legal concerns I thought was being raised.
> the ai is actually only capable of blending what it’s been trained on, whereas an artist is not similarly limited.
I'm not sure what "blending" means here or what the actual theories of generative art ML systems and of humans here are. To call what the former do "blending" requires such a broad definition I can't tell you if humans are blending as well (at least some of the time, at least materially) when creating works.
(If you're thinking of the recent court case, no, that was unrelated; some guy was trying to pull a stunt and the court did not actually rule on the thing you think they did.)
How could they enforce it? For example, by embedding a steganographic tag, by which human rights activists will be able to identify the author of the picture.
[1] https://commons.wikimedia.org/wiki/Commons:Photographs_of_id...
If there is no copyright in AI-generated images, then how can they possibly enforce this?