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AI Art

1190 Views • Created about a year ago By Evilthing • Updated 3 months ago

Created By Evilthing • Updated 3 months ago

If you're against AI art, do not fight it with copyright infringment

@Majoraz 4 days ago (edited) This was a fun video, and I dig the attempt to educate about the issues with Al art, but like many videos it doesn't explain and even misrepresents how copyright, intellectual property, and fair use actually works, and I think that's leading to misunderstandings about stuff like if the Al is "stealing" or the role of "creativity" in these debates. For context, I'm not an Al guy (in fact I do worry that corporations may undercut artists with it), but I am somebody invested in Intellectual property law, reform, and have followed cases & legislation for a decade. In particular, I'm worried that in a well intentioned bid to fight Al, artists may encourage legal changes that backfire and open human artists to liability too, not just limiting Al, as there's actually a fairly strong Fair use defense for a lot (but not all) of what Al's are doing, and any precedence set limiting Fair Use or expanding Copyright protection to stop Al might also apply and limit real artists too. Obligatory disclaimer that IANAL and that my comment here is based on US law, for other countries it might be different: For those unaware, the main thing in fair use determination is if the derivative work is "transformative". This is a legal concept that basically is asking is the derivative work is putting enough of a new spin on the original in both/either a literal and abstract sense. This is an IMMENSELY complicated concept, though, and to be honest, it's sort of impossible to cover entirely within Youtube's character limit: If something is transformative is just one aspect of many the courts consider when weighing a fair use defense: There's also Parody claims; there's the "4 pillars" (Purpose of a work, Nature of a work, how much of a work is used, and commercial impact), which a lot of sites act like are the only 4 but as i've explained there's other aspects too; and a whole host of other things. And Judges can and do invent new standards or weigh certain aspects more or less: You can satisfy a lot of requirements and still be infringing, or you can satisfy very little and still be fair use.... BUT, again, if something is transformative is usually the main factor, and this would be 12 pages long otherwise, so that's what i'm focusing on. The video here almost frames Al as almost splicing together bits of existing images, but in reality no actual parts of input images are cut out and pasted together. It's gleaning artistic principals via examine the trends and patterns between the input images, which it uses to develop an algorithm that can apply the things it "learned" to generate new images. This has a VERY strong argument for being transformative: For starters, the actual medium is changing. If you write up a text description of a painting, that's obviously not infringement, and what the Al is doing is even LESS of a adaptation then that: it's merely documenting select principals of it's composition rather then describing the work in totality, and not just from it but thousands of other works, where any one of them is merely a small part of the new whole. If anything it's more akin to saying that a book on lighting and composition would be infringing on the images the author looked at while writing the book, even if the book doesn't actually include the images or even describe them. If course, that's just discussing the Al algorithm itself, not the output images: I think that's more complex: As this entire video demonstrates, you CAN ask Al to generate images of copyrighted characters (like Goku), and that's obviously infringing on DB's copyright. You can also use Al to spruce up or "uncrop" existing images, which would likely be infringing on that image you had it modify: In both cases you can tell what the original character or image was. But if you're having the Al generate a brand new output image without specific copyrighted characters (say "Dragon in a swimming pool", then chances are no one image of a swimming pool or a dragon it used as an input is going to be obvious in the final piece, because it's just 1 of thousands of input images with little individual impact. It may not matter if the entire final image is derived from copyrighted inputs if only tiny bits of any one of them are still recognizable, but i'm admittedly not sure what the precedence is there with, say photobashing cases. I THINK it's just how much of any 1 is used based on what I've found, but I'm not sure. and there may be other factors. In any case, something I AM sure is wrong that both this video and many other people bring up, that the notion that the Al lacking "human creativity" in contrast to an artist looking at references somehow makes it not fair use or transformative. This just isn't true, at least in current law, as far as I know: Certainly, putting a themetically interesting and creative spin on a work can AID a Transformative (or especially Parody) argument when claiming fair use, but it's not a requirement. You do need human input to GET copyright protection, see Naruto v. David Slater (yes, really), but that's a separate thing. Similarly, the fact that Al's don't need to learn and practice also isn't really important in if it's Transformative, and the idea that it can replicate people's art styles also doesn't matter, as Copyright doesn't protect "Style", just specific works or characters, things, etc. This is where I think the risk with fighting Al via infringement claims starts: What if there IS a legal case or law passed changing that, and now creativity or requiring effort/practice IS a requirement in Fair use, or style IS now protected by copyright: Suddenly now you, as a actual, real human artist, might get sued because your art happens to stylistically look similar to somebody else's art. Or somebody making a piece of art that's a derivative work as a human artist now has a higher bar for claiming fair use because they have to prove it's sufficiently creative or high effort. Fair use is already WAY narrower then most people realize, and you of all people mark should know that. (If people are wondering why music Al generators only use royalty free music and care more about copyright, it's because the way copyright works with music is different: Music only has so many notes and the like vs the infinite spectrum of visual color, shapes, etc; so two people happening to make music with similar sections is common, and the case law with music infringement is ALREADY as such that in those cases, you're guilty of infringement often anyways even if it wasn't intentional. We do NOT want that happening with visual art copyright too. There's other ways music copyright is different too, like mandatory licensing) And the same giant corporations people are worried about misuing Al to undercut artists (which, again, is a real concern) would LOO00000OVE to have this happen: It would make it way, way easier for them to go after random people online with Copyright claims and C&D's: Imagine Disney Toei sueing somebody for making original characters that are just done in the Dragon Ball Style despite not actually being DB characters or using any copyrighted DB elements! In general, copyright expansions always benefit big corporations and hurt small creators: The corporations are too big to be sued for violations (such as when Family guy stole some guy's youtube clip then DMCA'd the original), and small creators are too small to fight back when the corporations sue them, even if what the creator did was fair use. Again, mark, you should know this. Of course, it's possible that a court's ruling or a law in an Al case could be worded in such a way that precedence would apply JUST to Al (Again, beyond being transformative, say, the market impact is part of fair use determination, and Al due to it's ease of use and lack of practice/skill is extra disruptive to the art market), but the courts have CONSISTENTLY passed laws and made rulings that hurt smaller artists and benefit corporations: As I explained before, ultimately it doesn't matter how many Fair use principals you do or don't meet, sometimes you win or lose anyways: In practice, how rich and powerful you are often decides things, many times before it even gets to court since big corporations can force settlements or draw cases out and the other side has to give in, or they can lobby for laws to pass. As it applies here, we've already seen the Concept Art Association's anti-Al fundraiser state they want to get the Copyright Alliance industry lobby group Disney etc are a part of to be involved, who want to use anti-Al sentiments to expand copyright. The courts will be WAY more willing to listen to the big corporations at the lobbying table or filing Amicus Briefs then they will small artists. So yeah, that's why I think framing what Al does as "stealing" or talking about how it's "not creative" or "can copy styles" is dangerous: It's well intentioned, but it's framing the issue and presenting arguments that, if they gain legal traction, could be disastrous to the rights of real human artists, as we can't guarantee that a court will rule or a law will be worded in such a way that those limitations would only apply to Al. As for how to combat it instead, I think there should be a push to get the Al companies to agree to stick to Royalty Free images on their own, like how the ESRB was formed without goverment regulation by the Games industry, and that people should just try to keep the precedence in place that Al images don't get their own copyright (which will discourage people from using Al in corporate contexts) without trying to claim the Al or the Al images are infringing. 38 se Reply
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