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Should AI images be copyrightable?
(beehaw.org)
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this post was submitted on 03 Dec 2023
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Some AI generated images can require a lot of tweaking to get a final result. For example, someone might have a workflow that involves generating several images, then picking one as a base. They then take that base, and use img2img to rework certain parts to suit a vision before applying a set of post-processing effects in a traditional editor.
Or, they generate an image and use it as a base for some sort of more traditional art, or use AI generated elements in a work that is otherwise drawn traditionally.
There's a lot of grey where I think just dismissing any creative vision is doing disrespect to the person that wanted to make something out of that vision, and put in a good amount of work outside just proompting and taking the first image that looked okay.
What it comes down to there is whether the act of selection is an act of art. If there is no skill other than picking, I'm not sure I'd consider it an artistic act. (For similar reasons I'm very much on the fence about a lot of modern art.)
When it comes to selection, we already have a valid form of copyright which is explicitly that- compositions. If I take a bunch of royalty-free songs, and make a book of sheet music where I hand selected songs to be in that book, I can own a copyright on the composition without owning any of the featured material.
So, if someone selects a bunch of individual elements in an image using img2img, is that now a composition?
If you use that approach there is no way left to claim that current AI models aren't a huge copyright infringement on the data they were trained on. Because the biggest argument for why AI is supposedly not copyright infringing it's training data, is because it's generated images aren't direct copies of the works if was trained upon.
But if you start arguing the idea behind a image or the vision is somehow copyrightable than all AI models are illegal. Since they definitely work by using the ideas and visions of artists.
I'm not talking strictly about ideas, I'm talking about a human having a vision, and taking action to make that vision into something. Whether something is copyrightable requires a "human element," which is the reasoning behind why machine or animal generated content cannot be copyrighted, because they lack that.
So the question is if someone tweaking an image, even if they're merely selecting things, then is that a sufficient human element to say that a person had enough hand in creating it?