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Everything Made By an AI Is In the Public Domain
(doctorow.medium.com)
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this post was submitted on 21 Aug 2023
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Consider the case of photography then - would you consider photos to not be copyrightable as all the photographer did was point a camera at something and push a button? The picture was not created by the photographer - just the output of light entering the machine and hitting some photosensitive paper (or a digital sensor these days). How is that any different from you macguffin maker? Or An AI generated work?
There have been many cases for photographs though - with mixed results. Namely the line is drawn when some level of human creativity is involved in the process of creating the works in question. Like in the case where a money took a selfie - that work was not copyrightable as there was no human input into the process. Just owning the camera is not enough to claim copyright. But there are other photographs are are considered copyrightable.
The case this article talks about is more akin to the money example - someone used an AI to create an image with no human input (and he admitted to this) and tried to claim copyright on the work as part of the work for hire clause to the copyright laws. The claim was shot down because no human input was part of the process. So this image was not copywritable.
But all the articles about this case are extending the judgment to mean any ai generated work falls under the same cause. But it does not as different AI work have different amounts of human involvement in the process. The case explicitly states that those works are still open for debate.
Things are not as clear cut that the titles these articles are using imply. And if a prompt is enough, or how detailed it would need to be to claim copyright is still an open question that as far as I know has not been tested in court yet.
The skill of a photographer is in the curation of the work.
They are credited with the framing, the positioning, the timing, the settings they used on configuring the camera.
If someone else went to the same location, attempted to frame it, position it, time it, and configure the camera themselves, even if the resultant picture somehow managed to come out identically to the first one - hell, even if they used the same actual physical camera - the photographer who took the first picture has no rights or claims over this new albeit hypothetically identical photograph.
Third example:
If a photographer set up a permanent camera at a location that already had the scene framed, all elements within the frame positioned, all settings calibrated and locked-in, and somehow even managed to make sure that the timing was always perfect every time someone came up and pressed the shutter button, ALL the work was still done by the photographer.
Fourth example:
If an AI algorithmically calculated all of these aspects and robotically configured a camera's settings, then used a drone to deliver and orient the camera precisely to achieve the framing and scene composition as determined by the algorithm, then were to schedule the exact optimal moment to trigger the shutters each time a human pressed a button, that human would have no claims or rights over the resultant picture and it ought fall directly into public domain.
That third example is a grey area. The photographer has no control over the subject of the photo, which is arguable a large part of the creative part of the photo. I am not convinced that they would automatically get copyright in that situation.
And the third and forth touch on a lot of points that modern smartphones already do - automatically set up the camera, can adjust the frame of the photo, take several pictures and blend the best ones together, stabilise the shot, auto adjust exposure etc etc. When does taking a photo with your smart phone end up being like those examples?
But regardless, this copyright claim has some good arguments for why a prompt for an AI generated image should not result in the image being copyrightable - far better then the case the article in this post points to.
The core of the argument seems to be that you cannot predict the output of the AI, so the prompts are more suggestions and not strong enough to be considered creative enough for a claim to copyright. And that generating lots of images until one matches your idea is also not enough - as that is like doing an image search until you find something that matches what you want.
Which feeds back into that third example, if the photographer cannot predict what the people will do in the frame then given the above I would argue they have a weak claim to copyright over the image. No matter how much work they did to set up the shot.