Tuesday, August 22, 2023

Does AI Art Infringe Copyright?

Art on the Internet is copied all the time.  Does AI Art infringe copyright?

I saw a discussion online on the r/comics site about AI art. Many artists are worried they will be out of a job if AI art takes over.  To "create" AI art on sites like midjourney, you need only create a "prompt" which some people claim is creativity.  Some are even calling themselves "prompt engineers" and claim that AI art generators are "just a tool" to create, much as a computer or pen is, for traditional artists.

One comic author turned this on its head, pointing out that using AI as a "tool" to create art, is akin to going to McDonald's and ordering a cheeseburger with extra pickles and claiming your "prompt" was an act of creativity and that McDonald's was just a "tool" you used.  Good Point - ordering food is not the same as creating it.  And by the way, most chefs hate it when patrons decide to create their own concoctions.  Better chefs forbid it.

But is AI art an act of infringement?  Does it fall under "fair use" or is it infringement at all?  In order to allege copyright infringement (which is different than Trademark or Patent infringement) you have to substantially copy something, not just copy the style or theme.

It is easier to say what is infringement than what isn't.  If I copy a piece of artwork exactly (for example, scanning it in and printing it out or making a photocopy) and then sell it for a profit, that is a clear act of infringement, assuming, of course, that the author or owner of the work didn't consent to such copying and sales.

So it is easy to define what amounts to egregious infringement.  Other scenarios are harder to quantify.

It reminds me of a story about Pablo Picasso.  Late in his career, he had cut back on producing art, and counterfeiters were making "knock-off" Picasso's and selling them. One day, a friend comes to Picasso's studio, only to see the artist frantically creating one painting after another. "Pablo, what are you doing?" he asks.  Picasso replies, "Making fake Picasso's!  Why should other people make all that money?"

Now, I am not sure if that story is true, or just some sort of joke. But it does illustrate the if-you-can't-beat-em-join-em mentality about Copyright infringement.  Because even if you can prove infringement, it can be hard to track down infringers and make your case.  It is a lot easier to make the case when they make a direct copy of your work.  It gets harder when you make something "in the style of" another artist, or modify an existing work of art without incorporating it entirely.

Andy Warhol, for example, made an iconic silkscreen of Marilyn Monroe, using different pop colors for each panel.  It became a trope and many artists have copied the style (indeed, I have one such painting hanging in my house, only with a greyhound in place of Ms. Monroe).  Warhol's estate has had trouble trying to argue these are infringements and not mere homages to the original.  And of course, Warhol, in some of these series, used someone else's photo as source material - himself infringing the rights of  others.

The problem with Copyright law is that other than making an exact copy for-profit, the definition of infringement gets grey.  This is because of our "fair use" doctrine, which is a defense you can bring, once you have been sued.  There are few "bright line" tests for "fair use" - just a set of guidelines a judge may apply.  So, as an attorney, it is hard to tell someone yes or no, as to whether they are infringing or not.

For example, if you are doing commentary, it may be permissible to copy a copyrighted material (or portions thereof) for that purpose.   It is hard, for example, to critique a painting without showing the painting itself in your work, or to critique a book without quoting from it.   Similarly, a "derivative work" may or may not infringe, and that's where it gets tricky with AI art.

The real issue with AI art isn't "robots taking over the world" but that these "AI" programs - which are not "intelligent" but rather just sample things from the internet - require a training sample to work from.  I wrote about neural networks before - early on in this blog.  You don't "program" a neural network, you train it, with samples and feedback, so as to alter the weighting of the nodes in the network, to produce a desired result.  So, to program a Maverick missile to shoot only at Soviet tanks, you need a set of photos of US tanks (no shoot!) and Soviet tanks (blow 'em up!) for the program to "learn" from.  And you only have to hope it learns what you thought you taught it, not what it figures out on its own.

Neural networks are like teenagers - you think you are teaching them one thing, but they actually learn another - usually how to avoid the rules you put in place and still get away with mayhem.

So AI "art" and chatbots require some source material to "train" from.  And this is where online artists get angry.  Their very jobs may be put in jeopardy by AI "art" - which can produce commercial artworks in less time and for far less money than a real artist - but at the same time, AI programs require a training deck of existing art to learn from.  The human artist becomes nothing more than training material for the AI art-bot, and the human artist is not compensated for this effort.

In terms of Copyright law, the human artist is shit-out-of-luck as well.  It would be very hard to prove which images an AI art-bot relied upon to create a new image.  And unless significant portions of the new image were exact copies of someone else's work, it would be hard to show infringement exists.  "In the style of" is not the same as infringement.  Whether something looks sort of like you may have drawn it, is very subjective, and I doubt judges would be willing to go down that road.

AI art-bots tend to create creepy, soul-less images, which may be a function of their source training material. It seems many of these images are very dark and foreboding and have very detailed backgrounds with lots of swirly colors.  Details may be off - hands with seven fingers, or shapes that cannot exist in a three-dimensional world, or, as shown in the image above, an extra arm appearing out of nowhere.  Maybe this will improve over time, as the bots get better or "learn" from better material.  It is hard to say.

But these "mistakes" illustrate the problem with AI-art.  The program doesn't "know" that people have only two limbs and five fingers.  It only "learns" from other images, and there are no "rules" in place about number of limbs or whatnot.  Why they appear to creepy is another question entirely.  Maybe because art without a soul is soul-less?

One thing has already been settled, sort of - the Copyright office at the Library of Congress has refused to grant ownership rights to a work to an AI art-bot.  Their position is that such works are not created by humans, or more precisely, only a human can own a work of art or literature.  The Library of Congress is not about to grant sentient status to a computer program.  On the other hand, I am sure many a work has already been registered with the LOC Copyright office, by people claiming to have "created" a work using an AI-bot, through "prompt engineering."  Whether those ownership rights are recognized by the courts remains to be seen.

UPDATE:  The Copyright Office has granted rights - to a human - for an AI generated comic book.  They granted the rights to the book as a whole but not the individual images, the latter of which they argued were not produced by the "author" of the book.  Collecting the images and putting them in order and adding a text is Copyrightable in any case, even if you did not produce the source images.  So in reality, this is not "new law" they are creating.  Derivative works and collections have always been Copyrightable, even if the source material is infringing.

Note also that the rule that only humans can own Copyrights is not new.  Paintings and photos made by monkeys, gorillas, and elephants were not deemed copyrightable by their handlers or camera owners, and not "owned" by the animals themselves.  Instant public domain.

The Library of Congress only registers works, it doesn't determine whether the registration is legitimate or not.  So long as you fill out the forms correctly, they will register your work - even if you lie on the forms.  However, by lying, your registration and rights may be invalid, and you may have committed a crime as well.  But like I said, I am sure there are hundreds, if not thousands of such registrations (and you don't need a Copyright registration to claim common-law copyright, either!) that have been filed for AI-created works.  Whether they are valid or not, remains to be seen.

If an AI-bot cannot "own" a work, and a human "prompt engineer" cannot own it either, it could create the awkward situation where all AI art and literature and music automatically becomes public domain the moment it is created.  If there is no profit motive for AI-art, then what's the point?  It could kill off the whole genre!

Let's hope!