Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.
So the question of how much human input is needed is still up for debate. I doubt any prompt will pass the creativity mark, but I suspect with a creative enough prompt you will likely be able to claim copyright and author ship over the works.
This case did not explore either of these ideas, only that you cannot claim the AI as the author and thus claim copyright via the work for hire clause in the copyright laws if there is no human input into the process.
This ruling IMO makes sense and is inline with other cases (such as photos being taken by an animal with no human input are not copyrightable). And IMO this is a good ruling - makes it harder for large numbers of images to be copyrighted on mass by companies or companies that own the AI claiming copyright over works their AI generated (even if the prompt was given by others).
@nous I figure a judge wouldn’t count prompts because they are basically commissions. If you commission an artist to create a piece for you, it’s still their piece. If a corporation commissions the artist to create the piece, they can own it as work-for-hire, which is EXACTLY what Thaler was trying to claim in this case, but they aren’t the creator.
If you can replace “AI” with “Professional Artist” and you wouldn’t be eligible for your amount of input, then it’s not copyrightable.
There is a difference here between an AI and a “Professional Artist”. In the case of the Professional Artist they are the closest thing to the art that is considered human input. But in the case of the AI generated work - it is the prompter. In this case the AI is more like photoshop or a camera than it is a Professional Artist.
At least there are arguments that can swing this both ways. Only a court would be able to decide for sure. But I am not convinced that it is a slam dunk case in favour of making AI generated works uncopyrightable.
You might think of it this way - if you hire a photographer, and let them take some photos of something letting them have control over the process, then they will likely have a claim over the copyright.
But if you guide them on everything - from setting up the objects in a scene, to the lighting, to the settings on the camera and everything else to the point all they are doing is clicking a button on the camera - then who has the claim in that case? It is a far less clear cut case. I could see courts leaning towards the person with more of the creative input into the work than the one who simply took the picture. As it is the creative process that is important, not the one that pushed a button. Though typically the one pushing the button is also the one with most creative input into a photograph - so this case has not come up as far as I know.
The case is harder to make with an painter though as the process of painting I think would be considered a substantial amount of creative input - much more so than taking a photo. Even if they were fully prompted by someone else.
But with an AI, I think it would be more similar to that of the photographer than a painter. So I figure a judge would count a prompt - as that is the most human involved creative part of the process. Much more so than the case of the photographer or a painter.
That’s thing, though. That’s the question the court is answering. It says that the closest human is STILL NOT CLOSE ENOUGH if they aren’t doing the same level of control and work as a human would be doing if they gave them the prompt.
If you use an AI as just another tool, that’s one thing. But just giving a prompt is NOT creating art.
This article was talking about the Thaler v. Perlmutter case - which Thaler confirmed
that the work “was autonomously generated by an AI” and “lack[ed] traditional human authorship,” but contesting the Copyright Office’s human authorship requirement and urging that AI should be “acknowledge[d] … as an author where it otherwise meets authorship criteria, with any copyright ownership vesting in the AI’s owner.”
So he was never trying to claim that he created the work or had any involvement in its creation at all. Only that he as the owner should get copyright over the work. As far as i can tell his AI generated the images without any prompt at all. So this case does nothing to further the argument over how much a prompt can be considered creative works. So none of the articles based on this case are doing any justice to what this case represents.
Though I have just been made aware of this copyright claim that does a far more damning case for prompts not being considered creative enough to be able to claim copyright. Though I don’t know if this has been tested in court yet.
Don’t forget that there can be multiple independent copyright claims. In the example of the painter, both the painter and the commissioner can own copyright to their respective contributions to the result.
I suspect with a creative enough prompt you will likely be able to claim copyright and author ship over the works.
It seems that’s not the case, no matter how much effort or time you expend on the prompts. This is from the Copyright Office:
The Office does not question Ms. Kashtanova’s contention that she expended significant time and effort working with Midjourney. But that effort does not make her the “author” of Midjourney images under copyright law. Courts have rejected the argument that “sweat of the
brow” can be a basis for copyright protection in otherwise unprotectable material.18 The Office “will not consider the amount of time, effort, or expense required to create the work” because they “have no bearing on whether a work possesses the minimum creative spark required by the Copyright Act and the Constitution.”
Here’s another key factor:
Because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images to be treated as the “master mind” behind them.
The fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists.
This only applies to an image generated with AI prompts that isn’t significantly altered by an artist.
This is a lot more relevant to most people’s workflows, but even it reads like it wouldn’t apply to someone using processes that allow them more control, e.g., a Stable Diffusion workflow using multiple iterations; ControlNet with author-created posing; in-painting with directed img2img prompts for additional control; additional directives that restrict the creative output in a particular domain, e.g., the palette or lighting type, to an author-provided set; and most of all, AI-free post-processing.
If I understand correctly, that means this is setting precedent for the extreme without human intervention. So any other wrinkles must be decided in precedent from other cases on a gradient between “AI made” and “human made”
I would say the precedent is already set, like with the cases where animals have taken a selfie - works like that created without human input or involvement are not considered copyrightable. And an AI is not a human. So this case is just confirming this precedent for the case of pure AI generated work (ie that without human input).
So, if prompting is considered as human intervention, the whole ruling is absurd?
From the case itself:
So the question of how much human input is needed is still up for debate. I doubt any prompt will pass the creativity mark, but I suspect with a creative enough prompt you will likely be able to claim copyright and author ship over the works.
This case did not explore either of these ideas, only that you cannot claim the AI as the author and thus claim copyright via the work for hire clause in the copyright laws if there is no human input into the process.
This ruling IMO makes sense and is inline with other cases (such as photos being taken by an animal with no human input are not copyrightable). And IMO this is a good ruling - makes it harder for large numbers of images to be copyrighted on mass by companies or companies that own the AI claiming copyright over works their AI generated (even if the prompt was given by others).
@nous I figure a judge wouldn’t count prompts because they are basically commissions. If you commission an artist to create a piece for you, it’s still their piece. If a corporation commissions the artist to create the piece, they can own it as work-for-hire, which is EXACTLY what Thaler was trying to claim in this case, but they aren’t the creator.
If you can replace “AI” with “Professional Artist” and you wouldn’t be eligible for your amount of input, then it’s not copyrightable.
100% agree with this, simply giving a prompt to an artist doesn’t give you any leverage as far as copyright goes so why should it for AI?
There is a difference here between an AI and a “Professional Artist”. In the case of the Professional Artist they are the closest thing to the art that is considered human input. But in the case of the AI generated work - it is the prompter. In this case the AI is more like photoshop or a camera than it is a Professional Artist.
At least there are arguments that can swing this both ways. Only a court would be able to decide for sure. But I am not convinced that it is a slam dunk case in favour of making AI generated works uncopyrightable.
You might think of it this way - if you hire a photographer, and let them take some photos of something letting them have control over the process, then they will likely have a claim over the copyright.
But if you guide them on everything - from setting up the objects in a scene, to the lighting, to the settings on the camera and everything else to the point all they are doing is clicking a button on the camera - then who has the claim in that case? It is a far less clear cut case. I could see courts leaning towards the person with more of the creative input into the work than the one who simply took the picture. As it is the creative process that is important, not the one that pushed a button. Though typically the one pushing the button is also the one with most creative input into a photograph - so this case has not come up as far as I know.
The case is harder to make with an painter though as the process of painting I think would be considered a substantial amount of creative input - much more so than taking a photo. Even if they were fully prompted by someone else.
But with an AI, I think it would be more similar to that of the photographer than a painter. So I figure a judge would count a prompt - as that is the most human involved creative part of the process. Much more so than the case of the photographer or a painter.
That’s thing, though. That’s the question the court is answering. It says that the closest human is STILL NOT CLOSE ENOUGH if they aren’t doing the same level of control and work as a human would be doing if they gave them the prompt.
If you use an AI as just another tool, that’s one thing. But just giving a prompt is NOT creating art.
This article was talking about the Thaler v. Perlmutter case - which Thaler confirmed
So he was never trying to claim that he created the work or had any involvement in its creation at all. Only that he as the owner should get copyright over the work. As far as i can tell his AI generated the images without any prompt at all. So this case does nothing to further the argument over how much a prompt can be considered creative works. So none of the articles based on this case are doing any justice to what this case represents.
Though I have just been made aware of this copyright claim that does a far more damning case for prompts not being considered creative enough to be able to claim copyright. Though I don’t know if this has been tested in court yet.
TLDR write a creative poem as an input
Don’t forget that there can be multiple independent copyright claims. In the example of the painter, both the painter and the commissioner can own copyright to their respective contributions to the result.
It seems that’s not the case, no matter how much effort or time you expend on the prompts. This is from the Copyright Office:
Here’s another key factor:
This only applies to an image generated with AI prompts that isn’t significantly altered by an artist.
That is a far more interesting read and more damning than what all these article are talking about - the Thaler v. Perlmutter case.
This is a lot more relevant to most people’s workflows, but even it reads like it wouldn’t apply to someone using processes that allow them more control, e.g., a Stable Diffusion workflow using multiple iterations; ControlNet with author-created posing; in-painting with directed img2img prompts for additional control; additional directives that restrict the creative output in a particular domain, e.g., the palette or lighting type, to an author-provided set; and most of all, AI-free post-processing.
If I understand correctly, that means this is setting precedent for the extreme without human intervention. So any other wrinkles must be decided in precedent from other cases on a gradient between “AI made” and “human made”
I would say the precedent is already set, like with the cases where animals have taken a selfie - works like that created without human input or involvement are not considered copyrightable. And an AI is not a human. So this case is just confirming this precedent for the case of pure AI generated work (ie that without human input).