> Are there any humans that can produce artwork without ingesting inspiration from other art? Do you know any artists that lived in a box their whole life and never saw other art? Do you know any writers who'd never read a book?

> Are they any human artists who can't, if requested, draw or write something that's a copy of some other person's drawings or writings?

This still is pretending that humans and AI models are equivalent actors and should have the same rights

Emphatically no they shouldn't. The capabilities are vastly different. Fair use should not apply to AI.

This isn't about giving "rights" to machines. Machines are just tools. The question is about what humans are allowed to do with those tools. Are humans using AI models and humans not using AI models equivalent actors that should have the same rights? I'd argue emphatically yes they should.

The thing is, we already have doctrine that starts to encompass some of these concepts with fair use.

The four pronged test in US case law:

- the purpose and character of use (is a machine doing this different in purpose and character? many would say yes. is "ripping-off-this-artist-as-a-service" different than an isolated work that builds upon another artist's art?)

- the nature of the copyrighted work

- the amount and substantiality of the portion taken (can this be substantially different with AI?)

- the effect of the use upon the potential market for the original work (might mechanization of reproducing a given style have a larger impact than an individual artist inspired by it?)

These are well balanced tests, allowing me as a classroom teacher to duplicate articles nearly freely but preventing me from duplicating books en masse for profit (different purpose; different portion taken; different impact on market).

The problem with this conversation is that its being had by people that make the top level comment here stating that clothing is not copyrightable. It is. Clothing design is copyrightable. This was a huge recent case, Star Athletica. They know nothing about copyright law and they just build intuitions from the world around them, but the intuitions are completely nonsense because they are made in ignorance of the actual law and what the law does and why the law does it. I find it exhausting.

Your sentiment is probably correct in that there are many aspects of copyright law that are not strictly aligned with the public’s intuition. But your example is a bit of a reach. Star Athletica was a relatively novel holding that allows for a specific piece of clothing, when properly argued, could qualify as copyrightable as a semi-sculptural work of art, however this quality of a given piece is separate to its character as clothing. In fact, the USSC in Star Athletica explicitly held a designer/manufacturer has “no right to prohibit any person from manufacturing [clothing] of identical shape, cut, and dimensions” to clothing which they design/manufacture. That quote is directly from a discussion of the ability to apply copyright protections to clothing design. I think the end result is that trying to argue technical legal issues around a poorly implemented statutory regime is always fraught with errors. That really leave moral and commercial arguments outstanding and advocacy should try and focus on that, when not fighting to affect change in the law these copyright determinations are based on.

And just to be clear, this post does not constitute legal advice.

You're dismissing my comment because of what someone else said upthread?

I hate the desire to meta-comment about the site rather than argue on the merits.

We obviously don't know so much about how courts will interpret copyright with LLMs. There's a lot of arguments on all sides, and we're only going to know in several years after a whole lot of case law solidifies. There are so many questions, (fair use, originality, can weights be copyrighted? when can model output be copyrighted? etc etc etc). Not to mention that the legislative branch may weigh in.

This discourse by citizens who are informed about technology is essential for technology to be regulated well, even if not all participants in the conversation are as legally informed as you'd wish. Today's well-meaning intuition about what deserves copyright and why inform tomorrow's case law and legislation.

> Emphatically no they shouldn't. The capabilities are vastly different. Fair use should not apply to AI.

Fair use applies even to use of traditional algorithms, like the thumbnailing/caching performed by search engines. If I make a spam detector network, why should it not be covered by fair use?

Fair use applies to humans and the things they do (including AI). It is not something that applies to algorithms in themselves. AI's are not people, the people who use them are people and fair use may or may not apply to the things they do depending on the circumstances of whatever it is they do. The agent is always the human not the machine.

True; consider the "it" in my question ("If I make a spam detector network, why should it not be covered by fair use?") as "my making (and usage) of the network".

No idea on the legality, but common sense suggests that the difference would be that a spam detector doesn't replace the products that it was trained on, while AI-generated "art" is intended to replace human artists.

The question is "is it a derivative work of the original?" - not if it is a generative work.

If that was the distinction to be made, using ChatGPT as a classifier would be acceptable while using it to write new spam (see the "I am sorry" amazon listings of the other day) would be unacceptable.

If two different uses of a tool allow for both infringing and non-infringing uses (are photocopiers allowed to make copies(!) of copyrighted works?) it has generally been the case that the tool is allowed and the person with agency to either use the copyrighted work in an infringing or a non-infringing way is the one to come under scrutiny.

I believe that if it is found that OpenAI is found to have committed copyright infringement in training the model, then an argument that training a model on spam be considered to be copyright infringement could be reasonably constructed.

If, on the other hand, OpenAI is found to have sufficiently transformative in its creation of the model and some uses are infringing, then it is the person who did the infringing (as with a photocopier or a printer printing off a copy of a comic from the web) that should be have legal consequences.

Yeah, I really think it should fall on the user as opposed to the tool.

> common sense suggests that the difference would be that a spam detector doesn't replace the products that it was trained on

The extent to which it supplants the original work is one of the fair use considerations.

I think it'd make more sense to have a stance of "current LLMs and image generators should be judged by fair use factors and I believe they'd fail", though I'd still disagree, instead of having machine learning models subject to a different set of rules than humans and traditional algorithms.

That is indeed the most common stance. There isn't nearly as much outcry over, say, image classification by LLMs, as there is over AI "art" generation.

> Are there any humans that can produce artwork without ingesting inspiration from other art?

This sounds so detached from human experience that I am tempted to ask if you are a human or just a disembodied spirit that haunts the internet.

When the first neanderthal drew a deer on the walls of a cave, where did they get inspiration?

When a little child draws a tree for the first time, where do they draw inspiration? Do you think they were reviewing works of Picasso?

When the firm man made an axe, chopped a tree, made a bed, sown some clothes, discovered fire, where did they draw inspiration?

Do you not have eyes, ears, do you not perceive and get inspiration from the natural world around you?

Yeah, but that’s not really your sole source of inspiration. My son has been ‘inspired’ by the art of all other kids in his kindergarden. Certainly by the time he gets to the age where he does it professionally he’s been inspired by an uncountable number of people.

What % is his independent inspiration? 30%? 90%? There are certainly people for whom it was 90%. For most we don’t know.

We do know one thing for sure - that for AI it’s 0%

We don't know what percentage is independent inspiration for a person using the AI to create art.

Once upon a time it was a contentious idea that humans had significant authorship in photographs, which merely mechanically captured the world. What % is the camera's independent inspiration?

Here, we have humans guiding what's often a quite involved process of synthesis of past human (and machine) creation.

> We don't know what percentage is independent inspiration for a person using the AI to create art

The person using the AI doesn't matter in the equation. They aren't an artist, they're a monkey with a typewriter.

We're talking about the AI here, because it can generate the same images no matter which monkey with a typewriter is typing the prompts.

> The person using the AI doesn't matter in the equation. They aren't an artist, they're a monkey with a typewriter.

That's an opinion.

Does your opinion hold in all circumstances? If I spend 20 hours with an AI, iterating prompts, erasing portions of output and asking it to repaint and blend, and combining scenes-- did I do anything creative?

Of course the person using the AI matters. It's literally the same as holding a brush. You can give it a prompt, get a result and be unhappy with it, modify it or remove it, and proceed doing that until you are happy with what you have.

No matter how great the AI is, a monkey with an AI will never generate anything useful.

Being inspired isn't against the law. copying is. it'd be one thing if this conversation could be had with useful terminology that's actually on point. instead we have you, insisting that there is no creative process, there is only experiencing other art and inevitably copying (because apparently you think that's the only thing humans can do!). It's all so telling. Yet its tragic because so many here don't even realize it. I'm sad for your inability to engage with creativity and creative acts.

I think a lot of the discussion is where the balance of the creativity lies when a human uses a model (trained on other artistic works) to create art.

Is the result a copy, or perhaps a derivative work of the art in the training set?

Does the person using the model have authorship of the result?

Was it even okay to use the art to train the model and then share the resulting weights?

Are the resultant weights protected by copyright themselves?

I suspect the actual answers we'll come to on these topics will be full of nuance.

> When a little child draws a tree for the first time, where do they draw inspiration? Do you think they were reviewing works of Picasso?

Are we going to discount the hundreds to thousands of artistic pictures children are exposed to? Or how about the teacher sitting up front demonstrating to the class how to draw a tree?

> Do you not have eyes, ears, do you not perceive and get inspiration from the natural world around you?

Learning to see as an artist is a distinct skill. Being able to take the super compressed simplified world view that mind sees and put something recognizable on paper is a specialized skill that has to be developed. That skill is developed by doing it over and over again, often by copying the style of an artist that someone enjoys.

Or to put it another way, go to any period in history prior to the mid 20th century and art in a given region starts to share the same style, dramatically so, because people were inspired by each other, almost to a comical extent. (Financial reasons also had something to do with it as well of course, Artists paint/carve/engrave/etc what sells!)

> Are there any humans that can produce artwork without ingesting inspiration from other art?

Do you think art was there before humans? Or humans made art?

If you believe the 1st proposition… please tell me about your very unique religion!

If not… you've answered your own question.

> Are there any humans that can produce artwork without ingesting inspiration from other art?

Logically, the answer to this is (almost certainly) yes, so you’ll need to discount this argument.

If the answer were no, then either an infinite number of humans have lived (such that there was always a previous artist to learn from), or it was true in the past but false in the present, which seems unlikely given humans brains have generally become more and not less sophisticated over time.

I presume what you’re missing here is that the brain can be inspired from other sources than human art. For example: nature; life experience; conversation.

Not making any other comment about what machines can or can’t do, just wanted to point out this argument is invalid as it comes up a lot and is probably grounded in ignorance around the artistic process. It’s such a strange idea to suggest that the artist process is ingesting lots of art to make more art. That’s such a weird world view. It’s like insisting every artist is making art the way Quentin Tarantino makes films.

I’ve spent a lot of time with artists, I’ve worked with them, I’ve been in relationships with artists, and I can tell you the great ones see the world differently. There’s something about their brains that would cause them to create art even if born on a desert island without other human contact. Some of them don’t even take an interest in other art.

In fact, those artists that _do_ make art heavily based on other artists’ work as suggested are often derided as “derivative” and “unoriginal”.