Yes, works made with an AI can be copyrighted.

In fact in most cases works made with an AI, just like works made with a typewriter or a paintbrush or Photoshop, are copyrighted by the human who created them, the moment that they are “fixed” (to use the wording of the Berne convention). I’m writing this page mostly to address the many statements to the contrary that are all over the web, and that people keep posting on the MidJourney Discord and so on, so that I can like link to this page whether than typing it in yet again every time someone says it.

But I read that a series of rulings found otherwise!

Yes, sadly, I’m sure you did. Here are just a few samples of this misinformation (one is especially disappointed in Smithsonian Magazine, ffs). But if one reads beyond the misleading headlines, these are all about two decisions by the U.S. Copyright Office in the case of Thaler, and (tl;dr) all those decisions do is reject the theory that an AI can create something as a “work for hire”, and the person using the AI thereby get the copyright to it as the “employer”. Since in US law only persons or “individuals”, not including software or computers, can be “creators in fact” of a creative work, they reject that theory.

The decisions in the Thaler case most definitely do not say that a person who uses an AI program in the ordinary way, just like a person who uses a paintbrush in the ordinary way, doesn’t come to own the copyright to that thing automatically, in the ordinary way (as nicely explained here). And in various other countries, the copyright laws explicitly account for things generated by or with an AI, and acknowledge that copyright applies to them (see for instance this short survey).

(If you’re here just because someone posted you this link when you said that images made using AI can’t be copyrighted, that’s all you need to know, but feel free to read on etc!)

But when a person uses an AI, all the creativity is in the AI, so the person shouldn’t get a copyright!

No court case that I know of, in any country, has ever ruled this way. One might as well argue (and people did, when the technology was new) that there is no creativity in a photograph, since all you do is point the camera and push a button. And yet it’s (now) uncontroversial that people get copyright in the photographs that they take.

It’s easy to take a picture, but a good photographer picks a camera and lenses, decides where to point it and in what light to press the button, and then decides which images to keep. It’s easy to use an AI to make a picture, but a good user of an AI image tool picks an engine and settings, decides what prompt(s) to give it and with what switches to invoke it, and then decides which images to keep. I think those are very analogous; you may disagree. The courts have not yet weighed in as of this writing, but it seems to me that denying copyright because a particular kind of software was involved in a certain way would be a mess that courts would not want to wade into.

If there hasn’t been a positive ruling in the US, though, it could turn out…

I agree, since the law doesn’t explicitly say that a person using an AI to make an image has the copyright in the image, and because the “all the creativity is in the AI” argument does exist, it’s not impossible that some US court could find that way. So one might not want to risk anything really important on that not happening.

What’s up with Thaler, anyway?

Thaler is, well, an interesting character, it seems. He believes that some AI programs he has created have had “near death experiences”, and he has attempted to obtain patents with an AI program as the inventor, as well as the attempts to cast them as work-for-hire employees for copyright purposes, as mentioned above. An individual before his time, perhaps. Perhaps.

Update: What if the ToS of a service says…

As a couple of people asked / pointed out after I posted this, sometimes the Terms of Service on a site where you can create stuff, says or implies that you do not own the copyright to the stuff, but they do, and they grant you some sort of license.

The MidJourney ToS, in fact, currently says that “you own all Assets you create with the Services” with a few exceptions including ‘If you are not a Paid Member, Midjourney grants you a license to the Assets under the Creative Commons Noncommercial 4.0 Attribution International License (the “Asset License”).’ This is a bit terse and ambiguous, but the obvious interpretation is that in that case MidJourney owns the Assets, and grants the user a certain CC license.

As far as I know, it isn’t well-established in IP law whether a ToS can unilaterally change who owns what like this; if anyone knows more, I’d be interested! But in any case, this sort of thing still says or implies that someone owns the rights, so it doesn’t directly impact the overall subject here.

Update 2: Show me an actual AI artwork that is registered with the US Copyright office!

Funny you should ask! :)

Update Infinity: Lots more stuff has been happening since this was originally posted!

See the Copyright tag on the weblog here.

This is boring, post a picture!

A strange surreal owl-thing or something

Sunday in August

Brilliant title, eh? :) Various things have occurred! I will mention some of them.

There is now a full draft of my graphic novel(ette); it’s 40 pages, and about 50MB, so don’t expect your phone to pop it up very quickly. And also don’t expect it to be that good :) as I’ve never really written in this medium before, and it’s tough. In the most recent draft I removed considerable exposition which felt out of place, replacing it with images and short statements. Now I’m afraid the result is basically incomprehensible :) at least to anyone not already familiar with the SF tropes I’m touching on.

It was really fun to do, though! As I’ve mentioned, all of the art was done using MidJourney, and the compositing and most of the text was done in the GIMP. I got a few nice pieces of display text from cooltext.com; if I’d thought about it a little harder, I would have used something more interesting than Sans-Serif Bold (and sometimes Italic) from the GIMP font collection. (There’s a little Verdana, just on the copyright page at the end I think.)

This was the most fun when I was putting together the images that I’d already created that inspired the story in the first place. It was more frustrating when I needed a particular image and was trying to create it in MidJourney; it is sometimes a challenge to generate a specific thing! The water droplet at the very end, for instance, came after many, many attempts to make a crystal / water sphere that wasn’t sitting on a surface of some kind.

Other things! In order to get even more meta than this, we entered “Here is a short description of an image that has some interesting visual elements:” into NovelAI. It responded:

A man wearing a white t-shirt and blue jeans sits in his chair, staring at the television. His eyes are closed as he watches a show about two women discussing the weather. The screen reads ‘NBC News’ with a picture of a woman.

and I typed that into MidJourney, and got this:

Four rather fuzzy pictures containing a person and some TV screens

So that’s in some sense entirely AI-generated, using a human-designed procedure. It’s also really boring!

Let’s try again; this time NovelAI says:

A woman in a white dress, standing on a rocky beach. The ocean is behind her and the setting sun makes for a bright glare to one side of her face as she looks out into the water.

and MidJourney responds with (after a considerable delay because I am in relax mode, which is basically “nice -n 19”:

Four nice slightly impressionistic images of a woman standing on rocks by the water with the sun low.

which is quite nice (although again not exactly what the prompt says).

So there you are: the first two (or eight) images produced by a particular meta-algorithm using Modern AI Technology! :)

Other things are to a great extent prevented from occurring by the fact that it is Very Humid outside, and there are Pandemics and so on still. I went out to get bagels this morning, and I was like “yow, what is this very large humid windy room here?”. There’s a chance I’ll get into Manhattan next week; that will be quite a shock!

I have not been playing Video Games to speak of, because all of these AI stuff has been more interesting. There is all sorts of stuff to say about legal issues (Yes, content generated using an AI can be copyrighted by the human creator!) and societal issues (impact of AI on artists and art perhaps similar to impacts of photography on same?) and all like that there. But it is more fun to make cool pictures!

So in closing here is the one I used on the copyright page of the Graphic Novel(ette). Be well!

A surreal image of maybe a sheep standing in shallow water looking at maybe like a blimp made of sticks or something.

So many AIs and images and stuff!

I was thinking of a post extending the legal thoughts from last time to talk about this widespread claim (based on the Thaler decisions that I mentioned briefly there) that “Artwork made with an AI can’t be copyrighted”. It’s all over the clickbait-website press, and it’s wrong. The rulings in question said that an AI can’t be the creator-in-fact of a work (in the U.S.) so someone can’t get copyright to a work based on being the “employer” of the creator-in-fact AI. But they say nothing about the obvious alternative that a human can be the creator (simpliciter) of a work make with an AI, just as a human can be the creator of a work made with Photoshop, or a paintbrush.

Heh heh, I guess I’ve already written a bit about that here now, haven’t I? But there are various arguments and counterarguments that one could talk about that I’m not going to.

Then there’s the fact that I’ve been generating So Many Images in Midjourney, which for a while there had pretty much entirely drawn me away from NightCafe. As well as those So Many Images, I’ve started to put a bunch of them together in the GIMP in the form of a sort of amateur manga or graphic story that attempts to have an actual plot and stuff; here’s a pdf of the story (the first 10 pages of it, which is all that currently exists), at considerably reduced resolution so it isn’t like over 30MB. Feedback welcome. :)

But then! By which I mean just today I think! NightCafe has become very interesting again, due to adding the Stable Diffusion engine. Which I have been using extensively, and have noted that:

• It is kind of boring compared to the other engines I’ve used, in that it seems to usually take the simplest and most quotidian interpretation of a prompt, and create the most unremarkable (and, admittedly, sometimes impressively realistic!) image possible from it.
• The right set of adjectives and so on can get more interesting results from it sometimes. The prompt prefix for Yeni Cavan, for instance, produces recognizably Yeni Cavan images, but somewhat less smoky and mysterious ones than Midjourney or the NightCafe Artistic engine do.
• It has some kind of risible post-censorship blurring algorithm, and if a picture looks too naughty to that algorithm, it comes out with a very heavy blur applied. I have (accidentally) gotten one NFSW image that its filter didn’t detect, and on the other hand just including “in the style of Gauguin” in a prompt seems to pretty reliably produce just a blur. (“Well, yeah, he’s in the training set, but his stuff is really too naughty to output.”) I mean, /facepalm and all.
• Update: when I reported a couple of very obvious porn-filter false positives, NightCafe support replied that the filter should be gone / optional in “a few days”. Very gratifyin’!
• I wish NightCafe had an “effectively free, but might be slow” generation mode like Midjourney does. I’m running out of NightCafe credits after playing with Stable Diffusion for hours, and I’m near out of credits, and given the overall experience I will probably just to back to Midjourney now and make more images for the comic. :)

So that’s those things! But mostly it’s been lots of cool pictures. We will close with a recent one from Midjourney:

“Atomic surrealism detailed render“

and something that Stable Diffusion did (rather interestingly) with the same prompt:

“Atomic surrealism detailed render“

Stay surreal! :D

Is it plagiarism? Is it copyright infringement?

So I’ve been producing so many images in Midjourney. I’ve been posting the best ones (or at least the ones I decide to post) in the Twitters; you can see basically all of them there (apologies if that link’s annoying to use for non-Twitterers). And an amazing friend has volunteered to curate a display of some of them in the virtual worlds (woot!), which is inexpressibly awesome.

Lots of people use “in the style of” or even “by” with an artist’s name in their Midjourney prompts. I’ve done it occasionally, mostly with Moebius because his style is so cool and recognizable. It did imho an amazing job with this “Big Sale at the Mall, by Moebius”:

“Big Sale at the Mall, by Moebius” by Midjourney

It captures the coloration and flatness characteristic of the artist, and also the feeling of isolation in huge impersonal spaces that his stuff often features. Luck? Coolness?

While this doesn’t particularly bother me for artists who are no longer living (although perhaps it should), it seems questionable for artists who are still living and producing, and perhaps whose works have been used without their permission and without compensation in training the AI. There was this interesting exchange on Twitter, for instance:

1/ Hello @midjourney how goes?

Quick question, is there a way one can specifically ask for their name to be in a “do not EVER allow to be used in a prompt” list? Seeing folks on your discord not only use my name, but trying to figure out how to train your ai to mimic my work-

— Karla Ortiz (@kortizart) August 1, 2022

The Midjourney folks replied (as you can I hope see in the thread) that they didn’t think any of this particular artist’s works were in the training set, and that experimentally adding their name to a prompt didn’t seem to do anything to speak of; but what if it had? Does an artist have the right to say that their works which have been publicly posted, but are still under copyright of one kind or another, cannot be used to train AIs? Does this differ between jurisdictions? Where they do have such a right, do they have any means of monitoring or enforcing it?

Here’s another thread, about a new image-generating AI (it’s called “Stable Diffusion” or “Stability AI”, and you can look it up yourself; it’s in closed beta apparently and the cherrypicked images sure do look amazing!) which seems to offer an explicit list of artists, many still living and working, that it can forge, um, I mean, create in the style of:

Here is a collection of relatively modern or currently working artists that they advertise as styles to steal on their site(there are hundreds of others). This is just gross. pic.twitter.com/LLcl7dR9IN

— RJ Palmer (@arvalis) August 14, 2022

So what’s the law?

That’s a good question! I posted a few guesses on that thread (apologies again if Twitter links are annoying). In particular (as a bulleted list for some reason):

• One could argue that every work produced by an AI like this, is a derivative work of every copyrighted image that it was trained on.
• An obvious counterargument would be that we don’t say that every work produced by a human artist is a derivative work of every image they’ve studied.
• A human artist of course has many other inputs (life experience),
• But arguably so does the AI, if only in the form of the not-currently-copyrighted works that it was also trained on (as well as the word associations and so on in the text part of the AI, perhaps).
• One could argue that training a neural network on a corpus that includes a given work constitutes making a copy of that work; I can imagine a horrible tangle of technically wince-inducing arguments that reflect the “loading a web page on your computer constitutes making a copy!” arguments from the early days of the web. Could get messy!
• Perhaps relatedly, the courts have found that people possess creativity / “authorship” that AIs don’t, in at least one imho badly-brought case on the subject: here. (I say “badly-brought” just because my impression is that the case was phrased as “this work is entirely computer generated and I want to copyright it as such”, rather than just “here is a work that I, a human, made with the help of a computer, and I want to assert / register my copyright”, which really wouldn’t even have required a lawsuit imho; but there may be more going on here than that.)
• The simplest thing for a court to decide would be that an AI-produced work should be evaluated for violating copyright (as a derivative work) in the same way a human-produced work is: an expert looks at it, and decides whether it’s just too obviously close a knock-off.
• A similar finding would be that an AI-produced work is judged that way, but under the assumption that AI-produced work cannot be “transformative” in the sense of adding or changing meaning or insights or expression or like that, because computers aren’t creative enough to do that. So it would be the same standard, but with one of the usual arguments for transformativity ruled out in advance for AI-produced works. I can easily see the courts finding that way, as it lets them use an existing (if still somewhat vague) standard, but without granting that computer programs can have creativity.
• Would there be something illegal about a product whose sole or primary or a major purpose was to produce copyright-infringing derivative works? The DMCA might possibly have something to say about that, but as it’s mostly about bypassing protections (and there really aren’t any involved here), it’s more likely that rules for I dunno photocopiers or something would apply.

So whew! Having read some of the posts by working artists and illustrators bothered that their and their colleagues’ works are being used for profit in a way that might actively harm them (and having defended that side of the argument against one rather rude and rabid “it’s stupid to be concerned” person on the Twitter), I’m now feeling some more concrete qualms about the specific ability of these things to mimic current artists (and maybe non-current artists whose estates are still active).

It should be very interesting to watch the legal landscape develop in this area, especially given how glacially slowly it moves compared to the technology. I hope the result doesn’t let Big AI run entirely roughshod over the rights of individual creators; that would be bad for everyone.

But I’m still rather addicted to using the technology to make strange surreal stuff all over th’ place. :)

Midjourney haunted by mysterious woman

I’ve apparently made over 500 images in Midjourney now, and posted quite many of them to the Twitter. It’s great fun, just like when I first found AIDungeon, NightCafe, etc. It remains to be seen how long this will last, and if I slack off after a while with the feeling that I’ve sort of scouted all the interesting parts of the conceptual space. That has certainly not happened yet. :)

In the Good Old Days of AIDungeon, there was a running joke on the subreddit about how characters named Count Grey and Karth and Kyros would constantly appear unbidden; eventually people (including me, hem hem) discovered the various stories in the specialization-set that contained those names, and eventually after that the devs added an optional filter to avoid outputs containing any of those names.

In recent days, I have discovered sort of the same kind of thing in Midjourney! There is a particular woman’s face that appears, well, much more often than any other face seems to (at least with the prompts I give, which may or may not be significant, see below) and sometimes in cases such as random-gibberish prompts where one wouldn’t especially expect a face at all.

The rest of this post will be just various pictures in which the mystery woman has appeared, from earliest to latest, with possibly-amusing observations and history in the captions.

Prompt: “The Sketches She Made Today” and that’s her upper-right and lower-left (#2 and #3)

I blew up #3 because it was such a striking face. Perhaps this is when she began slipping into my Midjourney images! Like a spirit!

Prompt: “The things we see when we close our eyes”; not necessarily her, but not obviously NOT her.

Prompt: “Le cœur a ses raisons que la raison ne connaît point”; that’s her, obviously, upper left

The prompt here was just “Realistic detailed portrait”. We notice a certain similarity!

Prompt: “tilsit commerath bex dunnig”; she appears as #3 even with a nonsense prompt!

Prompt: “Soft-focus steampunk portrait”

Prompt: “All of her faces are angry now”. Lower-right.

Prompt: “professional portrait in the library”; Lower right again!

Prompt: “Award-winning sepiatone photograph of an enigmatic face in repose”; lower left, obvs

Prompt: “Faces in the trees; dark ominous haunted; detailed image; fantasy, night, dream, eyes”; yipes!

Prompt: “pictures of Lordes”; lower-right once again at least

prompt: “concept art film noir, songs of love”; the female lead is clearly HER

“concept art film noir, Night Life”

“People All Over The World Have Seen This Woman In Their Dreams”
yes, that was actually the prompt, and this was one of the 4-up.

Prompt: “tuppy wup kazami ghent-blum plornish” I mean, come ON!

Prompt: “Manga Action Sequence; thrilling and detailed” and now we have a Manga version of That Face

There are a few others that might arguably have been Her as well, but I tried to stick to the most compelling examples.

Clearly we ought to have a name for this woman! I attempted to get the AI to reveal it:

Prompt: “A woman wearing a name tag”

… but it did not fall for our simple strategem.

So the mystery continues! Who is this woman? Someone who occurs especially often or especially notably in some training set? Or a sort of local minimum / maximum in the network’s energy space, based on what a typical face in the set looks like? (You will have to take my word that other faces, male or blonde or with a different nose, are much rarer in Midjourney outputs.) Inquiring Minds Want To Know!