Yeah, I am equally confused and I fear the law is going to royally bungle this one and we'll be stuck with something really stupid for some arbitrary number of decades or generations.

It just seems obvious to me that "human made thing to transform some set of things into a composite+transformation of those things" is fair use if fair use is to make any sense at all. Since analogously, like you said, in the same way you are taking your experience including experience of copyrighted stuff as a set of things you are drawing upon producing something of your own. All art is derivative.

It makes zero sense to me at all that it's suddenly a problem that art is derived if, instead of artist directly painting something, artist sets up some device that paints something. In both cases "human takes inputs and produces something".

Unless I'm missing something too, but based on what I see so far I just feel like I'm from mars and don't belong here.

> It makes zero sense to me at all that it's suddenly a problem that art is derived if, instead of artist directly painting something, artist sets up some device that paints something.

I think a big difference in how this tech makes people feel is the amount of effort required. It's a problem we see with technology in other areas, too: it's not (much of) a problem if a cop sits outside a suspect's house for a few hours to monitor their behavior. Most people think it would be a problem if the cops pointed a camera at the house 24/7 for months. Pretty much everyone agrees canvassing society with cameras and creating a public space surveillance panopticon is bad. Where's the line?

Similarly, if some artists spend years learning the craft and mimicking a couple of styles with a relatively small output, it's not a huge problem. The scope is small. But if everyone on earth can do it to anyone on earth at massive scale just by typing "in the style of ..." to an AI, does that start to be a problem?

The line is pretty simple for me, because it's the same line that applies to people. It doesn't matter what the training set is so long as it is not reproducing either the same thing or too similar to the thing it's trained from. Somebody else linked that you can't generally copyright style for instance, and if I recall you can't copyright algorithms or things of general knowledge either. So you can copyright "a specific instance of a thing", but not "the general idea of a thing". Here, near as I can tell, these algorithms generate some general idea of the things it's trained on and produce something specific different from the specific things. What should matter is only if it is different enough, same as it matters for people.

We've got much bigger problems though but if we, we as people generally not specifically you, can't even agree on something I see as so fundamentally basic bringing up things I think are problems would start war

> so long as it is not [...] too similar to the thing it's trained from

Aye, there's the rub ;) How do you define "too similar"? If I invert the colors of Munch's The Scream, is that an original work? What if I pass it through a computer program I wrote to swirl it around in a spiral? I think those are clearly derivative works--you put the image in as input, put it through a mechanical transformation process, and get the same output for the given input. That description also applies to AI.

> these algorithms generate some general idea of the things it's trained on

Well, be careful here. AIs don't generate ideas. They take inputs, do some mechanical work on them, and output something derived from the inputs. There are no "ideas" involved here, it's a(n extremely complicated) mechanical transformation.

(To repeat myself, I don't know where I stand on the issue. I think there's good arguments on both sides.)

>Aye, there's the rub ;) How do you define "too similar"?

... Same ways I do for humans. That's why I wrote "the same as for people" that line was supposed to contextualize everything else I wrote and somehow it hasn't.

edited to fix a screwup. because somehow I swear I hit "copy" but it didn't copy

> It just seems obvious to me...

> The line is pretty simple for me...

When things seem so obvious and simple, it can be a good mental exercise to try to put yourself in the shoes of the "other side" for whom it also seems obvious and simple.

While never my main thing, I've worked as a professional artist and know people for whom art is their livelihood. The holy grail in that world is to create a unique style that will command a premium: an art director decides your style is perfect for their new campaign, a building designer decides your style fits the lobby of the new building, etc. This style is the result of years and years of refinement, false starts, watching trends, etc. And this style is why they get paid, and how they feed their family.

When you tell such an artist that now any schmuck can create art in their style just by writing "In the style of..." you should understand that —especially to a non-technical person—the end result is just a slight deviation of from a copy machine. To them it seems "pretty simple" and "obvious" that this is just a fancy way of stealing.

(And I'm not taking sides here, just saying that step one is to realize that the issue is not simple, and is thus super interesting.)

>When things seem so obvious and simple, it can be a good mental exercise to try to put yourself in the shoes of the "other side" for whom it also seems obvious and simple.

I would if I could but as I keep tryin to explain I can't because it requires I believe something that's a contradiction.

Just because it's a contradiction that makes ya more money don't mean it isn't a contradiction. Also I am that non-technical person.

Laws are compromises. And fair use was never simple.

You are not missing anything: you are asking the key question in that process. We don’t have an answer.

As a society, we agree that you, a human, copying art you’ve seen is original (or at least derivative enough that it warrants a new copyright).

We agree that a photocopy machine, or rather a human operating one, is copying art in a way that is not creative enough to warrant a copyright — so the human goes to jail.

As a society, we have not agreed upon how transformative a “work” from a generative AI has to be to count as original, or even if it can. A recent decision claimed that no machine work without human effort would count — ignoring the effort to find good prompts, pick an image and edit it further. An AI is different because no much was “trained” to make art before AIs: some animals were (elephants famously), and who owns their work is tricky — there’s a case of a photo, a selfie actually, taken by a macaque that is really interesting in that regard.

https://en.wikipedia.org/wiki/Monkey_selfie_copyright_disput...

My recommendation would be to have a similar system to what we have for music (and I think plays) where there are two or three “authors”: the person who wrote the score, optionally the person who wrote the lyrics, and the interpret: the singer. It gets really fun when you have orchestras, animals involved in making music, or sound-sampling like in RnB.

We could have original human authors and AI adaptors, each paid based on use. If I like your work, I could commission OpenAI to make “a portrait in the style of alistairSH” based on your DeviantArt work, but of my mother (whom you’ve never met), using photos that I’ve uploaded of her. I can pay OpenAI, who would pay you. Style vs. theme could be separated with current AI technology, although that could get just as complicated as every intellectual property process very fast.

If I build a Rube Goldberg painting machine and somebody else "pulls the trigger" to start the machine, who owns the output? Me or the other person? In the case of today's AI models, I could see arguing that the creator of the AI or the creator of the prompt have some rights to a specific output, but not the AI itself.

The monkey case seems fairly cut-and-dry to me - the monkey didn't steal the camera (as often reported) - the photographer engineered a situation to get the result (he set up the camera, the tripod, and held onto the tripod so the monkey wouldn't steal the whole rig). It's his art. If the monkey actually stole the camera, then it's nobody's art - just a random occurrence.

If an artist orchestrates a group of humans to create art, the art belongs to the artist, not the group (as far as I know - I'd love to hear otherwise).

I guess for me, given today's technology, I don't see an "AI" as any different than a Rube Goldberg machine hurling paint at a wall. A human had to create the AI and a human had to prompt the AI, one or both of them own the art. And in all cases, the art is always based on something the human saw previously. No art exists in a vacuum.

And I agree that a system like music rights might be appropriate. The AI author, the AI prompter, and probably anybody involved in the training data, all have some right to the output. Then the question is what % to each, but that's solvable.

The best equivalent in this case would be the engineers working on Photoshop for Adobe: they write Rube-Goldbergian code to detect shapes, colors, and let artists click once to detour, cast shadows, adjust palette, etc.

Excellent point regarding the famous Monkey selfie, which I think points to the emerging issue of biological vs artificial agents.

It presents a sort of mirrored view of the GenAI issue: The human photographer does not get credit because the monkey is deemed to be the "agent of intent" rather than him, presumably because it's a living thing. If a photograph was triggered instead by a human tossing a rock onto the shutter, no one would claim that the rock now holds the copyright!

Interesting thought experiment to replace the monkey with other "organic agents" and some method for them to trigger a photo: A squirrel? A lizard? A cockroach? A slime mold? At what point is the organism so "simple" that you say it was just part of the system/mechanism?

Then on the artificial side, to replace the monkey with different mechanisms (as was your point): A photocopier seems quite different to a GenAI model. At what point does the human who set up the situation stop being the "agent"?

Relevant concept of the Intentional Stance: https://en.wikipedia.org/wiki/Intentional_stance

EDIT: Or at the far end of the spectrum, what about "art" that is made from DNA activity?! Does the copyright belong to the DNA? https://www.labiotech.eu/trends-news/gene-craft-laurie-ramse...

The concept of "agent of intent" definitely empowers the person using a GenAI too

It's not a dumb question at all, that is one of the most central questions in this whole debate. I think there's a reasonable argument that humans add their own "stamp" on every artistic output (that isn't a direct 1:1 copy) which would make it a unique work even if closely inspired by another artist. A machine would not add its own "stamp," it's purely a mechanical derivation of others' works.

I don't know where I fall on the issue myself, I think there's many good arguments on both side, both in pure IP terms and economic ethics terms.

The thing with generative models is, it's hard to make them output anything from their training set verbatim. I don't know of a single case of that succeeding with SD or DALL-E or others. So it's not necessarily false to say that the models too always add their own "stamp".

Yes, but I'd counter that by saying the difference is in its reproducibility. Given the same inputs to the machine (AI model, [copyrighted] training data, prompt, seed), you will get out the exact same output. It's a mechanical derivation of the original works, and therefore, a copyright violation. On the other hand, humans do not work that way, you can't point humans at the same works and get identical outputs. I'm not 1000% sold on this interpretation, but I think it is a reasonable one.

A good counter to that is that the training data that was chosen as an input, and the prompt, are sufficiently original to count as their own work. Kind of like how an artist might use a copyrighted stamp to create their own work (Campbell soup cans).

And a good counter to that is that a translation of a book into another language is still considered a derivation of the original work, not its own work, despite requiring a whole lot of creative human input on the part of the translator.

I don't know!

>And a good counter to that is that a translation of a book into another language is still considered a derivation of the original work, not its own work, despite requiring a whole lot of creative human input on the part of the translator.

At the end of the day, it's all about legislation and case law--and judges making calls on the borderline cases, which creates new case law. It even plays into whether models themselves are copyrightable which, in turn, depends partly upon whether certain doctrines (like "sweat of the brow") apply under current copyright regime.

Can a different person copy the style of copyrighted work so closely that it violates the copyright of the original artist? I feel like this is a question that must be answered before we add AI into the discussion.

Generally no, styles are not copyrightable, but as with all things in the world of IP, it's fuzzy. Here's the first thing I found on a web search: https://www.thelegalartist.com/blog/you-cant-copyright-style

I think one of the problems is that it is fuzzy. If we can't draw the line with humans, AI is going to increase the scale of the problem. Now, instead of a few artists getting close to the fuzzy area of acceptable or not and being able to be judged partially on intention, AI allows for magnitudes more to get into the fuzzy area. Perhaps we were too lax in allowing the fuzzy to remain fuzzy due to such a low number of cases, but now technology has increased the intrusions into this fuzzy space far faster than the law can keep up.

It’s a good question and I do not believe a style has ever been found to be copyrightable, only actual works.

Styles would seem to be more in the trade dress / design patent side of IP law. Apple’s famous 22-element iPhone design patent, etc.

But it’s hard to imagine an artist reducing their style to clearly defined elements and applying for protection. “A geometric grid or squares and rectangles with white background and black lines extending entirely across the canvas horizontally and vertically. Some grid rectangles are filled in primary colors. The square intersections of two black grid lines may be filled in primary colors. At least some of the grid lines are spaced irregularly”

So your argument boils down to the idea that humans impart a magical, invisible mark on their own artworks, and though no one can measure this mark nor see it, the fact that it exists within your own imagination exempts them from overburdensome rules that you would mercilessly apply to one of the most exciting innovations of not only the 21st century, but even the 20th century before it?

(I emphasize again, that I don't know where I stand on the issue. But for the sake of argument...) Well, I think my argument is that the mark is not invisible or undetectable. Simply by nature of being human, we impart something of ourselves onto things we create. For example, maybe by how you choose to compose the objects within a work, in a way the artist whose style you are mimicking would not have done, or the context in which you present it. Or maybe in how you hold the tools, where it creates an unintentional but different effect in the work. Whereas with an AI model, it will always create the same output for the given inputs.

> Well, I think my argument is that the mark is not invisible or undetectable. Simply by nature of being human, we impart something of ourselves onto things we create.

You're one of those people who think that if you can imagine something and then describe it poetically, that this has any relevance to the real world that the rest of us inhabit.

I think the detail that makes it tricky is that, in theory, an AI could just have a single neuron and simply output verbatim the image it was trained on. In which case we obviously wouldn't say that the image it outputs is a new work and freed from copyright.

So clearly there is some threshold of "transformativeness" which an AI must possess in order to be trained on one image and produce a different one that is considered a new work. Where exactly that threshold lies is difficult to define from a legal perspective.

That sounds a lot like music copyright, which also has a subjective threshold. It’s kind of a mess but it’s more or less worked for a century. Certainly better than any formula for rhythmic, melodic, and harmonic similarity would.

This is the crux of the issue. If courts find that AI draws like a human (at least for the purposes of copyright law), then you can only claim it infringed upon your work if it actually looks like your work was de-facto "traced"/copied by the AI and the output image only has small imperfections that don't qualify for fair use.

Copyright law does not care about how an infringing work was produced. It can be traced, or memorized and recreated, or described to a confederate over the phone, or whatever. It is only the actual work that is judged as infringing or not.

You can argue that artists given an implicit license for people to copy art into their own brains while viewing it. The same way websites give an implicit license for a browser to copy the page to display it. That does not necessarily mean they given an implicit license for someone else to copy the work as part of AI training.

Separate to that is the issue of producing new works that are too similar to existing works you've seen. If you do that as a human then you're liable for copyright infringement.

I think you’re proposing two big expansions to copyright: 1) that it covers what an observer can do, and 2) that everything is illegal unless explicitly made legal.

I don’t think I want to live in that world.

I'm proposing nothing, as far as I know that is how it is now. A browser viewing a web page is making a copy of the web page which is governed by copyright. Except by making a web page you give people the right to make that copy. Lots of interesting lawsuits around that regarding bots, scrapping, etc.

https://en.wikipedia.org/wiki/Implied_license

Copyright has always been about the reproduction of works. Copyright lawsuits about scraping, etc, are about the use of scraped data. That’s why EULAs, which are not copyright, are often used to try to further restrict rights.

None of that covers the idea that observing a copyrighted work is a violation of copyright only made acceptable by an implicit license. As the link you posted notes, that’s not what an implicit license is.

See this kind of thing here is what I think is a problem and has been a problem forever. We have two opposite laws on this,

1. Copying is theft (contents of a CD [software], movies, stuff on a website sometimes, etc)

2. Copying is not theft (VHS copies of broadcasts, cassettes, etc)

Problem is "implied license" (eula-roofie) where we've, without any good reason I think, decided that,

(a) Copying is theft when someone unilaterally declares what you buy to be different from the medium (CD vs what's on it [software, movie, etc])

(a)(2) except when it's a really old medium like a book which you're allowed to quote, and use in derivation, but don't you dare "quote a movie" by copying portions off that DVD or blu-ray because that's different. Shut up is why.

(b) Copying is theft when someone unilaterally declares their putting something up to view, which necessarily requires copying to view (sent over internet), can't be copied for derivative fair use

(b)(2) except when it's over another old medium like public broadcast because... fuck you? I haven't a clue myself how this makes any sense and I suspect it is because "it doesn't".

(c) Copying is theft if you take the copy sent you over the internet and do anything with it somebody unilaterally declares they don't want you to be able to do

(c)(2) except if it's an old medium, like a book, where you can borrow it and quote from it and do all the fair use stuff, or borrow a picture, or a painting, or...

All the fair use and copying and other sensible stuff without this weird "implied license" stuff doesn't exist for formats we've had before to the extent it does now. These formats, in principle, are still just "you get a copy of a thing on some medium", and yet we have two completely different laws based on this pure fiction of an "implied license" that declares you can't copy even portions of one on some format because... because.

I am trying, desperately, to explain there is fundamentally and in principle no difference. The root of all of our problems and why the law doesn't make any sense is the pure fiction that there IS a difference. And I feel like a goddamn madman yelling in the streets trying to explain something that feels so dog gon obvious to me but seems like is obvious to nobody else.

> You can argue that artists given an implicit license for people to copy art into their own brains while viewing it.

You can, but it would be more correct to argue that memories in a human brain are not copies under the law at all, and so need no license (or fair use analysis) in the first place. This has different results than an implicit license argument, especially when there is an explicit denial of license or an explicit license which is also explicitly bounded to exclude any rights not explicitly licensed.

> I feel like I'm missing something (obv IANAL).

The human did it.

That doesn't make any sense to me as a line, as the human set up the machine to generate some way to generate images. The human still did "it", the "it" is just one step removed, and we've tons of things where some "it" is one step removed from the human where your line doesn't apply in law or people's concepts.

Furthermore, but even if a human creates something directly, they've still "trained" on all sorts of things that include copyrighted images--and, yes, if they create something too close to one particular copyrighted image, they can be found to have infringed copyright.

You are actually the one doing something though.

If a line appears on the page, it’s because that’s your intent. For an AI, when a line appears, that is always someone else’s intent.

AI can only copy.

I mean. Do we really need to go over all the reason why an art scanner that copies art and maybe paints it differently is fundamentally not the same as a human learning to create art?

If we could copyright every stroke in our paintings or every line in our artwork, nobody would be able to make anything new. Humans copy painting techniques, photography tricks, shot setups (angles, margins, etc) and make new pieces all the time that advance the world of art.

Ah. So when challenged with facts, we defer to the good reliable ol slippery slope and exaggeration.

>humans copy techniques

And as I already addressed, when humans are creating, there is real intent. When an ai does it, it’s a copy and paste with no intent.

The intent is whatever the human puts into the prompt. If a human downloads an image, copies and pastes a solid black line thousands of times to make a mediocre drawing, is that not just copy and paste?

What is your actual intention here? Where does the "intent" in humans come from that AI doesn't, even when commanded by a human to perform something?

Where it comes from is that AI cannot create beyond its training scope.

If you ask an AI to train itself from its own images, it’ll always actually become worse using its own evaluation.

If you ask a human to train themselves, the human will notable become better of their evaluation.

AIs are fundamentally limited to their training set. Humans are not.

The fact that you can tell an AI to draw a specific thing, and it’ll steal content from other people doesn’t result in the AI having uniquely created an image. It has searched and blended strings together. That’s it.

> AI can only copy.

That's just plain wrong. AI can generate things that are not in the training set, hence it can not "only copy" (on the other hand, I could understand trying to argue that AI can only create pastiche, or that it "uses" training examples in a fundamentally different way than we do).

Prove it.

Fundamentally, AI image creators stitch together images, then try to apply an art style.

You might call it “unique” because it stitches things together wrong (hello 10 fingers on one hand), but it is still fundamentally just copying, pasting, and then deforming lines together.

People claiming that AIs understand what they’re doing and that what AIs do is not fundamentally copying and pasting are the ones who have the burden of proof here.

>but it is still fundamentally just copying, pasting, and then deforming lines together

That's called "photobashing", very common to see used by concept artists. Also, it's fair use.

So now you've got a bigger problem in that almost all concept artists are engaged in theft I suppose? Since they are "only" copying, pasting, and then deforming things together?

Funny how you declare photo bashing as “fair use” but a cursory glance at the actual legality shows that you’re lying and that it is also in a somewhat ambiguous grey area at the moment, with lawsuits pending.

It is also massively frowned upon in art sharing circles.

>but a cursory glance at the actual legality shows that you’re lying

[[citation needed]]

>a somewhat ambiguous grey area at the moment

That's a funny way of admitting I'm right.

>It is also massively frowned upon in art sharing circles.

Who gives a shit? What part of "commonly used in concept art", and among professionals in drafting and conceptual stages in general, do you deliberately seek to not understand?

You mentally unwell or are you just an internet troll?

Ad hominem usually demonstrates you know that you’re wrong.

I am not the one arguing that a computer has thoughts, feelings and intent as you are here. It is you that is deliberately attempting to misunderstand through ignorance, lies, and insult.

Here’s an article specifically on the legality of photo bashing:

https://www.owe.com/is-fan-art-legal-fair-use-what-about-mas...

Your “carte Blanche fair use” claim is nonsense. Copyright owners can, in fact, today stop derivative works that they know about, including photobashing.

By your own admission, AI is barely doing photobashing, so is very obviously not creating original works and is subject to copyright claims.

It gets tiring listening to HN AI enthusiasts pretending that AI is an actual comparison to human intelligence when it’s actually demonstrably a specialized search engine that does little more than copy and paste. If this were not the case, then:

-An AI would be able to feed itself without becoming shit tier nonsense

-An ai would be able to create materials not discernible from its training material

Neither case is true for any AI, including diffusion models.

>Your “carte Blanche fair use” claim is nonsense

Since you seem to not be aware of this: Fair use is an affirmative defense. By definition nothing I have written is therefore "carte blanche" as no defense of fair use can be ever said to be "carte blanche". This is pure sophistry on your part and transparently so.

>Here’s an article specifically on the legality of photo bashing

And mashups, photobashing, and many things likewise, remain legal and with fair use defenses in the courts as precedent. You continue to reach to any dishonesty or deflection including projection to avoid dealing with any of the points anyone has brought up.

That’s not a sound argument. AI doesn’t copy, but that doesn’t mean it must know what it’s doing in any human analogue of the “knowing” process.

That it doesn’t copy it’s very easy to prove: ask for something that is not in the training set. Does it generate it? Then it’s not a copy.

“Copy-pasting and deforming lines” is such a generic description (and to a certain extent a misrepresentation of what is actually happening) that I don’t see how it’s useful, or relevant. Even if we supposed this was true, you would be claiming that many of Duchamp’s works or potentially Arcimboldo’s or mosaics or collages are “just copies”.

AI does not copy

Diffusion models are exposed to a blank canvas and then instructed to produce something. At no point are they looking into a database. They simply produce an image that will score highly in their aesthetic estimations.

Prove it.

Train an AI just on a few techniques. Then a couple fundamental stock photos with nothing but the subject. Then have it generate things outside of the realm of the stock photos recombined in a general style. Let us see your completely unique and unpredictable results.

Can you explain in more detail what you want? If you undertrain a diffusion model it will produce meaningless gibberish. Which is still 'creative', just not what you expected. Training for a diffusion model is not 'inserting' images into a dataset. Rather you should view it as a 'taste' alignment.

>“If you under train a model, its results being copy and paste are fundamentally more obvious so I refuse to do that!”

Exactly dude.

But it's not copy paste. At no point does it not 'create' something from thin air. With training it produces things along the lines of what you want. That's the difference. It doesn't copy. It just notices what you like, and generates that.

You're not missing anything. When humans do this it's fair use.

The question is... Is fair use an exclusively human right? For example, we have many rights that do not extend to our possessions. Animals have no protected right to life or liberty. The human rights enjoyed by their owner do not flow to them.

Similarly, just because a human has a right to fair use, do AIs?

This has got to be a new type of mental health disorder - comparing human ability to that of a machine. What you are missing is that you are ignoring the fact that a machine simply does not compare to a human, neither in “rights” (it has none) nor in capability, and ignoring that there are restriction in what humans are permitted to do with other human’s work. Otherwise since machines have memory just as humans do we’d simply be allowed to download movies. Since machines can memorise just like humans do. This type of logic is comparable to that of conspiracy theorists in terms of sophistication.

I'm not missing that at all.

Put another way, if I create a Rube Goldberg painting machine, what copyright law applies? Why is that different than if I create/train/prompt an AI to do the work? One is physical, one is digital, but both require a human to create and initiate. And in both cases, every decision that human makes is made based on their life's experiences. No art exists in a vacuum. All art is derivative.

Let’s try something radical: not putting it any way.

A machine has no rights, and it doesnt learn as humans do.

I know the cult leader, altman, wants you to think otherwise, but no, stealing people’s work to make ai viable is not OK.

Nah, Altman doesn't really want you think machines are like humans and have rights either, because if the law thought that, it would also think Altman was aspiring to be the greatest slaver in all of history.

> the greatest slaver

Once he manages to replace y'all with ai, what do you think you will become?

The difference in training an AI compared to training a human is that an AI is not a human. Law makes differences between humans and non-humans all the time. AI drivers vs human drivers is a prime example.

If the question is in how biologically we learn compared to and AI, the answer is that humans don't learn by calculating math in order to determine how pixels relate to each other. Humans uses chemical signals between neurons and neuron activiation among other things in order to approximate the concept of what we consider to be learning.

I find a similar and equal important question when asking whats the difference between an AI learning and a human learning, is to ask whats the difference when a computer remembers information by storing it on a file compared to a human remembering information by storing it in long term memory.