Thoughts to commonly called artificial intelligence and the deviantart tool known as dreamup
https://www.deviantart.com/hddeviant/journal/I-Tell-A-Tale-Of-Dreamup-937255756

 

A extended essay on ownership

 

https://www.deviantart.com/theonewithbear/journal/Copyright-and-fair-use-A-deeper-look-into-AI-937264127

 

CONTENT

 

Hello everyone,

as the discussion on AI grows and attitudes become ever so polarizing on the subject, I decided I should elaborate and share facts on the law, as it is currently standing. Before I start, disclaimer:

I'm not with nor against AI. I'm only interested in exploring the foundation of which a discussion is built upon.

I believe it is important for any artist and freelancer to understand law, as it is a key in protecting ourselves. Fear and anger can do very little if the source of it isn't factual.

Everything I write is based on my own research, readings, understanding and worded in my own ways. If I am wrong logistically, please feel 100% free to correct me, I won't be offended.

This is written as of November 15, 2022. If the law gets updated, I will either update this journal with correct time and information or remove it entirely to avoid confusion.

This is based on the US law (which is hilarious because I'm Canadian) and may defer from other country's law.

FAIR USE

"AI art", as it currently stands in law, is NOT illegal. It may not feel legal, but it is not illegal. This is due to the counter law to copyright: fair use.

Fair use isn't just a term tech-bros use to defend AI's existence, it is something we, as creatives, have long benefitted from.

Copyright protects the unique expression of an idea. Fair use protects unlicensed usage of copyrighted materials.

Fair use allows creatives to make fanart (note: not sell), write fanfics, review video games, make parodies, write movie essays etc. to an extent without obtaining permission from the copyright owners. It is a law that exist to expand freedom of creativity in transformative nature.

 

Fair use of copyright law (Section 107) calls for 4 factors:

Purpose - commercial or nonprofit educational

Nature of copyrighted work - creative or technical

Amount of portion used in relation to the copyrighted work as a whole

Effect of use upon the potential market

 

Copyright and fair use conflicts go far into the history, see cases: Summaries of Fair Use Cases

A Tale of Two Seusses and Argued Fair Uses: The Fact-Specific Nature of Copyright Fair Use

Cariou v. Prince — Artist Rights

Banksy loses trademark battle after claiming ‘copyright is for losers’

Top 10 Cases on Appropriation Art and the Law

 

I could go on, but I think you get the idea.

 

As the verdict on whether or not machine learning should motivate an update on copyright law is still up in the air, currently, whether you like it or not, scraping the internet for AI training purpose and putting it to use still falls under fair use protection.

Source: U.S. Copyright Office. Click on Videos to listen to the panels that took place in 2021

Source: Pondering AI Machine Learning and Copyright Fair Use

"Protected" doesn't mean the court will rule in its favor, because it still depends on -how- it's used. As mentioned, fair use calls for 4 factors. To elaborate on each and use AI as an example (please be mindful that ALL of these scenarios are just possibilities, not absolute and can get really grey when used in combinations. I'm not a lawyer, I won't argue your case):

MAY be protected by fair use:

- the AI art piece isn't financially profiting

- the AI art piece is generated with generic prompts and ideas

- if the case is argued from the perspective where AI is built on billions of images, combined with personal photos, prompts, references and the result is transformative compared to the images used.

MAY NOT be protected by fair use:

- the AI art piece is profiting

- is using specific artist's name/brand (note: NOT the art itself. More on this below) *

- if argued from the perspective that it is built entirely off of copyrighted work and cannot exist without

Additionally, the court may consider:

- has the AI piece in question caused loss in revenue for the copyrighted work?

- will the AI piece cause future harm in revenue for the copyrighted work? (Note: for the above 2 points to stand, generally, the copyright holder must prove that the market had the intention to pay the copyright holder prior to the market discovering the AI art piece)

- is the piece "transformative" enough, meaning if the outcome resembles or reminds you or the copyrighted work, and/or has enough content and personal touch and ideas added to it to separate it from the copyrighted work, making it something new? If so, fair use. If not, copyright infringement.

*Artist's name/brand:

The reason I separated this into its own tab is because, names and brands don't fall under copyright, but rather trademark law. Copyright protects the unique expression of an idea, in our case, the visual representation of an idea. Styles, compositions, poses, color palettes, subject matter cannot be copyrighted as separate categories, but a unique combination of these categories done in specific ways can be copyrighted. IE: "girl in a black suit" can't be copyrighted, "a girl with red hair, mostly tied up, wearing black suit with yellow glowy eyes named Makina" can be copyrighted.

Due to the transformative nature of an AI generated piece, the final product will bond to look different than the copyrighted materials. This may put AI art under fair use or give it bigger argument ground.

However, if an artist's name is used as a prompt and the artist's name is trademarked, the case could go beyond just visual representation and fall out of fair use. Unlike copyright, which is automatic (though can be registered for certificate), in order to be protected by trademark law, you have to register for it.

 

Further reading on trademark law and copyright: Copyright in Characters: What Can I Use? Trademark vs. Copyright: Which Do You Need for Your Business?

Conclusion: It depends on how good your lawyer is. That's all there is to it.

MISCONCEPTION

"AI art can't be copyrighted because it infringes on copyright and is illegal" is a FALSE statement. The U.S. law dictates that machine cannot copyright its art, same as animals, plants and nature. If a monkey shits on a banana, the monkey cannot copyright the shit on banana. The machine cannot copyright the awkward looking cow it just generated with 5 words.

The same does not apply to the human that uses the machine.

On September 15th, 2022, Kris Kashtanova successfully copyrighted their Midjouney generated comic book, Zarya of the Dawn. The approval came from having presented credible creative process. Artist receives first known US copyright registration for latent diffusion AI art

It is still early to say what this may mean for copyright law down the road, but it defeats the statement which AI art can't be copyrighted.

 

On the other side of this coin, Microsoft, GitHUB and OpenAI are being sued for allegedly violating copyright law. The lawsuit against Microsoft, GitHub and OpenAI that could change the rules of AI copyright

When giants are involved, landscapes shift. The verdict of this trial may be the one we should pay attention to.

ETHICS

Now we get into the muddiest area of it all, ethics. To be quite honest, I don't know how to discuss this area as it isn't logical and mostly emotional. Everyone on the internet is more ethical than the last moron. Everyone judges just one step below what they find acceptable.

The bar of ethics varies vastly from one person to the next, but let's simply compare actions.

I personally believe it is very difficult for the art community to talk ethics, as a very big portion of us thrive on fanart.

Without fair use, 99% of the time, fanart is a breach on copyright as you've never obtained permission from the copyright holder to create a piece, so we benefit from fair use.

Many of us don't just create fanart, we also sell them, which often is no longer protected by fair use and becomes copyright infringement.

Many artists not only sell them, but also try evading copyright claims on Etsy, AFTER copyright claims were filed.

I've heard many try to defend this by claiming that at least artists have put in the effort to improve craft compared to someone who just types in a few key words. In this argument, you're mixing the positions of victim and offender.

The relationship is like this:

AI Art - Artist (victim) vs. Tech bros (offender)

Fanart - IP owners (victim) vs. Artist (offender)

 

The IP owners have invested millions of dollars, years of effort, and hard work from not just one artist, but teams of people with various skillsets to create memorable characters and stories, just so an artist who has drawn for a few years can profit off of it.

 

You may argue that the fanart you create and sell does not hurt the IP, which may very well be true. I never have any shame selling fanart of Danganronpa because 1. people who buy them already own the games and 2. I sold more copies of the games because people were curious about what I was painting and I speak highly of the games.

However, me being able to justify my action in my head does not make it legal.

As opposed to machine learning, which has no specific law currently to regulate it, I'm ALREADY breaking the law (plz don't report me to police kthx).

So who am I to talk ethics?

 

To me, humans are all the same. If it benefits us, we find ways to justify and welcome it. If it hurts our benefit, we try to burn it to the ground.

 

A portion of the ethic problem with AI is also just context, attitude and usage.

If a tech bro uses AI and acts like they are an artist who can do better than you, AI can go to hell.

If a concept artist uses AI to speed up work in a production pipeline, AI is a useful tool.

CONCLUSION

The reason I wrote this journal is not to tell you what is right or wrong. This is not me telling you we should embrace AI with open arms or dump it down the drain. I just wish for people to be more informed on the current state of law, because so much of the anger is based on misconception and that doesn't help our case.

Whether you have given consent or not at this point for machine learning doesn't matter, because there's no law to specifically target machine learning. If there is no law targeting it, then the current state of copyright law and fair use apply. You are aiming the pitchfork and torches at the wrong people.

 

There may be very little we can do at the moment, however, please don't despair.

Please don't forget the fundamental reason of why creatives are needed in this world and why we create. Tech bros may tell you that ideas matter more than skill, but they fail to recognize that they don't have brilliant ideas. They are just as basic and mediocre as they were before without AI. This is why we are only a few months in, and they have already saturated their own market, gotten bored because they realize it's hard to make a real profit.

They can't come up with newer prompts and they can't look any different from each other.

 

But the creatives will live on. We have the ability to be inspired and to build upon. It is in our blood and soul and AI can't take that away from us. If the millions of better artists out there never stopped us from wanting to improve and carve out our own space in this world, why should AI?

 

There are many people I've spoken with that always wanted to draw. They used AI, it gave them the sweet taste of the ability to visualize their ideas, and now they want more. They want to draw. And that's wonderful. There are also many artists doing incredible things with AI and taking their creativity to the next level due to AI opening a sky beyond their limitations.

 

Ultimately, we thrive on the little strokes we lay on the canvas; live for the fucking hot people we create. We have stories to tell, emotions to convey, feet anatomy to struggle with, and we know the satisfaction of watching our piece come together. We will shine through because artists are strong people, and we will find a way to co-exist.