What is copyright?
Copyright is the right to copy. Therefore, the two factors one needs to determine regarding infringement are:
- “Is it a copy?” – if not then the “copyright” is not an issue.
- “Do you have the necessary rights to copy?” – you have permission (a license), the copyright has expired, or been rescinded, the rights are an exception in law, there are no secondary rights issues.
MidJourney5: Mass duplication produced from a machine. – From experience AI likes producing copies and repetition.
What is a copy?
Defining a copy is slightly more complicated than it sounds. In the digital world a copy and paste operation can produce exact digital copies. Although ideas cannot be copyrighted, the manipulation of an image can maintain an instance of copy.
Two cases to consider would be the Obama Hope Poster by Shepard Fairy derived from the AP photo taken by Mannie Garcia and Andy Warhol’s Orange Prince derived from the photo taken by Lynn Goldsmith.
There is a difference between being influenced by and copying to create a new work. In the music world Ed Sheeran seems to be regularly in court defending the authorship of his music. To his credit, Ed has refused to settle , instead demonstrating his creative processes and has won all of the cases against him. Thus, drawing a firmer legal line for what is classed as influence rather than copy.
MidJourney5: Influenced in the style of a famous artist. – Seven strings on that guitar. AI is always giving subtle clues that there is a ghost in the machine.
Are AI works derivative works?
I would argue yes, the legal case for this is in hot debate. It is well documented that to train AI , the machine needs a dataset. That dataset is undoubtedly full of copyrighted works and there is also little argument that the dataset needs to be copied (but not retained) to perform the training. The output therefore contains copies of many, albeit tiny fragments of, other works. The copy, arguably, becomes incidental, nearing the “influenced by”, rather than “a copy of”. However the encouragement of using famous (including in-copyright) artists within the AI prompts must narrow the training datasets to a corpus of works that could be closer to “copy” than “influence”? A more obvious case of a derivative work would be to use the blend command with a known image , the resulting output may show little difference to the examples of Hope and Orange Prince.
MidJourney5: Obvious case of a derivative work – love it and certainly not what I would have thought of. Evolution is the derivative work of nature. I am a derivative work of my parents 🙂
Is an AI Image protected by copyright?
No. Machine works do not have copyright. In saying that, there are some interesting things at play here. Firstly a camera is a machine, that in itself does not invalidate copyright. A photographer has a number of creative judgements to consider before pushing the shutter, indeed the “when to take” is an important one. This means a photographer can have copyright even without being the one who pushes the button. There is a line however, evident in the monkey-selfie using David Slater’s camera. Neither David nor the macaque (via PETA) successfully asserted copyright. This leaves AI copyright, solely to the works, or words that go in, rather than what comes out. If one wants to have rights to the output it would be advised to create additional “manual” work to the resulting image.
MidJourney5: A photographer has a number of creative judgements to consider before pushing the shutter. – and see below about secondary rights. Is there any doubt that this is a branded camera? AI generated it.
Other rights to consider.
In traditional photography there are a number of secondary rights that have to be considered before publishing an image. Including, but not restricted to: Personality rights, model rights, privacy issues, property releases, ticketed entry contracts, artists rights, trademarks, moral rights. AI has been touted as a bypass solution for many of these rights but the obvious “beware” would be defamation. There are many AI images being created that depict celebrities or known people. Satire is an established legal exception to copyright which allows freedom of speech to maintain the political and social comment that cartoons have illustrated centuries. In AI, as we approach a fake that borders on reality, indeed is trained on actual images, it may be harder to hide behind exceptions such as satire. This leaves us with the perennial questions, does the state create laws to protect individuals? do the modern tech companies impose censorship?
MidJourney5: A famous person takes off the mask of a famous person to reveal a famous person. – too complicated to consider.
MidJourney5: Censored document showing a number of thick black redaction lines and several rubber stamp marks in red. – Didn’t really work either. AI is generally terrible at representing any form of accurate text generation.