Posts tagged ‘copyright’

2022/12/16

Some light infringement?

I think I have said on a few occasions that for instance a class-action copyright lawsuit against Copilot might not bear directly on AI art tools like Midjourney, to the extent that CoPilot apparently does tend to copy from its training set verbatim (and unattributed) whereas (I thought at the time) Midjourney doesn’t.

Well, it turns out that Midjourney does, maybe, to an extent. For maybe a few works?

The one that’s gotten the most attention is the 1984 photograph of Sharbat Gula by Steve McCurry, popularly known as “Afghan Girl“. The strings “afghan girl” and (haha) “afgan girl” are prohibited in Midjourney prompts at the moment. (“The phrase afghan girl is banned. Circumventing this filter to violate our rules may result in your access being revoked.”) And this is apparently because that phrase all by itself elicits what are arguably just slight variations of the original.

There’s a Twitter post that claims to show this, but I’m not certain enough it’s real to link to it. Also it’s on Twitter. But I can say that entering similar non-banned phrases like “young Afghan woman” also produce images that are at least quite similar to the photo of Gula, more similar than I would have expected. Given the size of the Midjourney training set, that image in association with those words must occur a lot of times!

(Update: it seems likely that the most widely-circulated image purporting to show Midjourney spontaneously generating close copies of the Gula “Afghan Girl” picture, is not actually that: it was made by giving the AI a copy of the original photo (!) and the prompt “afghan girl, digital art”. That the AI can make a copy of a work, given a copy of the work, is no surprise! Evidence, on a link probably usable only if you’re logged into Midjourney, is here. Given the further examples below, this doesn’t entirely undercut the point, but it’s interesting.)

The other example that I know of is “Starry Night”, which brings up variations of the van Gogh piece. This one’s out of copyright :) so I have no qualms about posting what I got:

Four variations on van Gogh's "Starry Night" ("De sterrennacht"), all with the swirly sky, tree to the left, buildings with lighted windows in the background, hills in the distance, crescent moon upper-right, blobby stars, etc.

Pretty obviously derivative in the usual sense. Derivative Work in the legal sense? I have no idea, and copyright law is sufficiently squishy and subjective that there is probably not a correct answer until and unless explicitly litigated, or the legal landscape otherwise changes significantly.

Are there other short phrases that will home in on a particular famous image? “Mona Lisa” (also out of copyright) certainly seems to:

Four variants of the Mona Lisa, all markedly worse than the original, but all very recognizable.

Interesting and/or hideous variations, but still instantly recognizable.

What else might we try? “Migrant Mother” produces images that I think are clearly not derivative works:

Four rather striking monochrome images of a woman and child, in various poses and garments, with variously creepy-looking hands.

Striking perhaps, ruined by the bizarre hands perhaps, in the same general category as the photo by Lange, but clearly of different people, in different positions, and so on. It’s not “plagiarizing” here, at any rate.

What if we tried harder? Let’s explicitly prompt with like “Migrant Mother photo, Dorothea Lange, 1936“. Whoa, yipes! Is this out of copyright? Well, if not it’s probably Fair Use in this posting anyway, so here:

Four slight variations of the famous Migrant Mother photo, showing a worried-looking woman with a child hiding its face on either side of her.

Definitely derivative, and possibly Derivative. How about “Moon and Half Dome, Ansel Adams, 1960“? Well:

Four pictures showing an oddly-distorted version of Half Dome, a very large moon, and some evergreens. One also has a reflecting body of water in the foreground, another is framed by a stone archway.

This is definitely not the picture that that search will get you in Google Images; if nothing else, the moon is way too large, and the top of Half Dome is a bizarre penguin-bill sort of shape. I’m guessing that this is because there are lots of other Ansel Adams pictures in the training set associated with words like “moon” and “half dome”, and mushing them all together quasi-semantically gives this set. The origin of the penguin-bill I dunno.

Maybe “Beatles Abbey Road cover, crossing the street“?

Crosswalk, front guy in white, roundish car to the left, check. Derivative in various senses, for sure. More specific prompting could presumably increase the exactness.

So I think we’ve established, to the extent of the tiny number of experiments I have the energy to do, that Midjourney (and, I would wager, other AI art tools, mutatis mutandis; I could get a Starry Night easily out of NightCafe, but not a Migrant Mother) can in fact produce images, the production of which arguably violates one or more of the rights of the copyright holder. It is most likely to do it if you explicitly try to do it (giving the most famous name of the image along with the artist and ideally the year and anything else that might help), but can also do it by accident (innocently typing “afghan girl”).

This doesn’t mean that these tools usually or typically do this; the fact that you can get a copy of an image from a tool that looks like it involves copyright laws doesn’t mean that other images made with it also involve copyright laws. To use the usual comparison, you can easily violate copyright using Photoshop, but that doesn’t suggest that there aren’t non-infringing uses of Photoshop, nor does it provide evidence that any particular image from Photoshop is infringing.

The easiest way to think about the blocking of “afg{h}an girl” from Midjourney prompts is that they have made a tool, realized that it could be used to violate copyright, and taken action to make it more difficult to use it that way in some cases.

This all bears on the question of whether images made with AI tools violate copyrights; the question of whether making the AI tools in the first place involves an infringing use is a somewhat different question, and we might talk about it some other time, although I’m still feeling kind of burnt out on the legal issues. But I did want to update on this one particular thing.

2022/11/26

Woot woot!

Graphs from NaNoWriMo, showing a steadish 2,000 words per day from the 1st to the 25th of November.

Kept the ol’ 2,000 words per day pretty constant during NaNoWriMo, except for a couple of days off that I made up for on the next weekend, so I made the goal of 50,000, and not by coincidence the end of the story, right there on the 25th (which was, let’s see, yeah, yesterday!). A nice feeling.

I think I like this year’s rather a lot. The little Midjourney pictures at the start of each Fling (where “Flings” really turned out to be Chapters) was fun, but I think not ultimately transformative; not a big deal. A few plot elements, some important, (the libraries, the plants, the fast sharp ships) came from the images, but without the images something else would I expect have sprung to mind and perhaps carried the same basic ideas, about meaning, and communication, identity and the symbol-grounding problem.

As a reminder; the whole thing can be read in order by clicking on the cover page here, and then clicking the bold link at the bottom of each Fling. I may be going through and fixing a few errors between now and the end of the month (although the relative inconvenience of doing that in WordPress may limit how much I do).

In other news, I’ve been on Twitter less, and on Mastodon / Fediverse more, prompted by the gross antics of the billionaire narcissist, but continuing just because it’s a more interesting place, with (so far?) more interesting and less upsetting communication going on. (It could be argued that given the State of Things, one ought to be upset; but so far I think the argument is flawed.)

I’ve been making tons and tons of images on Midjourney still (getting up near 20,000, the system tells me!) and they are still constantly improving the engine(s), which is very cool. I’ve been posting some of them on PixelFed (roughly, PixelFed is to Instagram as Mastodon is to Twitter), and also still on Twitter (the same ones, mostly). I have enough pictures that I love to fill many, many weblog posts, and I’m sure such posts will appear.

Here’s just one image for now that’s a total favorite; it’s called “Accord”:

A woman with a very long neck in foreground just left of center, looking to our right. Her hair extends fractally into infinity upper left. An infinite line of smaller women in dark clothes, all looking in the same direction, extends from her shoulder to the right, where a tower is dimly present through fog and insects. Two more of the smaller women stand behind her, eyes closed.

Is that amazing, or what? He said modestly.

In the legal domain, there is talk of a class-action suit against Microsoft / GitHub / OpenAI / Copilot, on something like the claim that training an AI on a piece of code requires the appropriate license from the owner of that code (or equivalent, as for public domain code or code you wrote yourself). The possibility of implications for AI art tools like Midjourney, and AI text generators like NovelAI, is clear, although there may also be significant differences. For instance, there seem to be various examples of exact plagiarism by Copilot, whereas as far as I’m aware no such thing exists for say Midjourney or NovelAI.

(There was at least one person persistently spamming Twitter and Reddit with a copy-pasted claim that GPT-3 plagiarizes, pointing at various things on the web that did not actually show, or generally even claim, that. I can’t find them today; perhaps OpenAI’s lawyers sent them a letter. Similarly I’ve been told by one person on Twitter (and at least one other who agreed with them) that for “[a]lmost all pieces I’ve seen thus far, I can point at and name the elements that came from individual artists, and often individual paintings or works”, but when I expressed interest and asked for a concrete example, they said roughly “I’ll get back to you tonight” and then went silent.)

It will be interesting to see what happens with this lawsuit. Somewhat sadly, I think that:

  • The most likely outcome is that they’ll just lose, because Microsoft is rich and individual Open Source contributors, even as a class, aren’t rich,
  • Second most likely, Microsoft will give some symbolic amount of money to something that will benefit some Open Source contributors a little and some lawyers a lot, and there will be no precedent-setting court decision,
  • Less likely, after some long wrangling process, something like the Private Copying Levy might be worked out, which is sort of like that last bullet, but more codified and involving more money, and possibly a precedent that there is a copyright violation at least potentially involved,
  • Even less likely, there would be some kind of opt-out process whereby a creator could indicate they didn’t want their stuff used to train AIs, and makers of AI engines would have to like re-generate their neural nets annually without the opted-art works,
  • And at the bottom, perhaps fairest in some sense but also least likely, a straightforward finding that AI Engine makers, at least ones that make money, really do need the right to copy and/or prepare derivative works of the things they train their engines on. So we’d get engines trained on just public domain works, things out of copyright, things posted under sufficiently permissive licenses, things they explicitly license, and so on. I would be fine with this, myself, but I wouldn’t bet on it happening.

We’ll see!

What else? That’s the main things I can think of. Oh, yeah, Thanksgiving was very nice; the four of us and the little daughter’s SO. We were (I was) especially lazy this year; beyond the HelloFresh pre-planned ingredients that we’ve used the last couple of years, this year we got the pre-planned pre-cooked just-needs-warming version from FreshDirect (ETOOMUCHFRESH). It wasn’t bad! And certainly easy. :) We also bought pre-made apple and pumpkin pies. I resist feeling guilty!!

Also my Windows laptop is broken (I’m not sure why or how; it behaves like a bad storage device, but both the HDD and the SSD seem perfectly readable when stuck into external USB things). Whatever’s wrong with it inside, it’s also vaguely falling apart, with cracked and broken keys, a non-functional direct Ethernet connection (on all connectors somehow), and some other stuff.

So I have an exciting new Framework laptop coming as an early Solstice present! (It’s supposedly in Alaska right now, on the way here in under a week or so.) Inspired, like so many other people, by Cory Doctorow’s glowing review. We’ll see if I am frustrated by the Intel graphics chipset. I’m pretty optimistic, as what I want to run isn’t like the latest AAA game; more like WoW and SecondLife and the GIMP and No Man’s Sky and Satisfactory. I might have to turn the resolution down some at worst I expect.

(In the meantime I’ve been using my phone and this tiny cheap Samsung Chromebook and just not using any of those programs; turns out my life doesn’t depend on any of them! The thing I’m most eager to do is get the GIMP going to work on Part 3 of Klara; in theory I could enable Linux on the Chromebook here and run the GIMP in that, but I rather doubt its CPU is up to it. Just typing this into the WordPress editor is lagging significantly just because I’m also watching YouTube and have a few dozen Chrome tabs open including like Discord and Mastodon and…)

There! :) Thanks for coming, and enjoy.

2022/10/31

Weirdness from the Copyright Office

A quickish update. I have said, and still believe, that things created using AI tools are just like anything else with respect to copyright. But recent events remind me that the Copyright Office is made up of people, and people are unpredictable, and US Copyright law is in many places a squashy mess made up of smaller squashy messes, so logic does not always apply.

Here is a currently-relevant set of data points:

  • I have registered the copyright on an image I made using MidJourney. I didn’t mention that I used MidJourney (or Chrome, or Windows) on the application form, because there was no place to put that; the form didn’t ask. The application for registration was granted routinely, without any complication.
    • I imagine there are hundreds / thousands of similar registrations from other people.
  • This person has registered the copyright on a work that they made using MidJourney (I think it was), and the work itself makes it clear that MidJourney was used. The application was afaik granted routinely, without any complication.
    • But now it appears that the copyright office has said “oh wait we didn’t notice that MidJourney thing, so we’re cancelling your registration”.
    • And the person is appealing, apparently with the help of MidJourney themselves. (Hm, they’ve also apparently deleted some of their tweets on the subject; lawyer’s advice perhaps.)
  • This person has applied apparently to register various images made with various workflows involving AI (dalle2 I think) to various extents, clearly stated, and rather than being just accepted or just rejected they’ve received emails from the copyright office asking them for details of what they did, and especially bizarrely suggesting that perhaps at least one of the works might have been “conceived” by the AI.
    • Which seems crazy, because the Copyright Office has generally had the opinion that software isn’t creative, and can’t (like) conceive things.

I suspect that things are just rather in disarray at the Copyright Office, and different examiners are doing different things, perhaps having gotten different memos on the subject, or just having their own different opinions about things. It will be interesting to see how the appeal mentioned above goes!

To me, it seems obvious that things created with AI tools should be prima facie registerable with the copyright office, just like photographs presumably are, and if someone wants to challenge based on some legal theory about either lack of creativity or derivative works or whatever, they can do that. The copyright office itself, I would think, would want to stay far away from any situation where they have to somehow evaluate themselves how many units of creativity are in each of the kazillions of applications they get daily.

On the other hand, the Copyright Office could simply issue some sort of guidance saying “We won’t register copyrights on works created with the significant use of an AI tool like dalle or MidJourney, so don’t bother asking” (and could even update the forms to have a question about it).

I think that would be dumb, and lead to court cases eventually that would either overturn that or at least cause a great deal of faffing about that they could have avoided.

But then people and government offices do dumb stuff all the time, so who knows! All is in flux…

And here is an image that I made using Midjourney. No matter what the Copyright Office thinks today. :)

2022/10/01

AI Art and Copyright some more

I am losing track of the number of AI-based image-creation tools I have access to now. It’s not that huge a number, but it’s complicated! :) There’s at least:

  • good old ArtBreeder, which I haven’t used in ages, and which seems to have a potentially interesting new mode where you sketch a thing with a few shapes, and then type text telling the AI what to make it into,
  • MidJourney with the old V3 engine and the newer and lyrically named ‘test’ and ‘testp’ engines and mixmashes of those,
  • NightCafe, which was my main goto image tool quite some weeks, with the old Artistic and Coherent engines, but now also the new Stable Diffusion (SD) based “Stable” engine, and various workflows among those,
  • NovelAI which now does images as well as text; the images are also in a Discord bot, and it’s really fast; it uses some heuristic smut-blurrer (maybe just the standard SD one?) but the devs sort of promise they will eventually move it off of discord and then have few or no restrictions (similarly to their text generator),
  • and now I discover that I have access to Dall-E also, from OpenAI, which I have just barely begun to use (detailed surrealism).

The “you can’t copyright art made with AIs” meme seems to have withered (which is good since it’s not true, although nothing is certain), but my experiment to gather additional evidence against it has finally borne fruit (months before I expected it to, really): I have now registered my copyright in this masterpiece of mine:

A blonde porcelain doll and a worn teddy bear sit on a trunk, in a musty attic in light from the window

with the real actual US Copyright Office, who have sent me a real actual certificate testifying to it. The registration can also be found on the web (you have to go to that page and then search on Registration Number for “VA0002317843”; I have yet to find a permalink that persists, bizarrely).

I did it through LegalZoom rather than myself; it cost more (I think), but I was more confident that I was Doing It Right during the process. There were no questions about whether AI was involved, or about what software I used to create it, or anything like that. I did have to say that I’m the creator, of course, but since I am :) I don’t see a problem there.

Registering the copyright doesn’t mean it’s 100% correct, it just creates a legal presumption. Someone could still challenge it, arguing that I wasn’t really the creator at all. I think that would be very unlikely to succeed.

And in any case, here is a nice concrete counterexample to any remaining “you can’t copyright art produced with an AI” claims that might be floating around.

The image is, by the way, provided under the Creative Commons Attribution-NonCommercial 4.0 International (CC BY-NC 4.0) license, so feel free to do anything allowed by that license. :) Knock yourself out! Figuratively!

Extremely generous friend Karima also continues updating the virtual world region “AI Dreams in Art” with things she likes from my Twitter feed, etc, so drop by! It is getting blushingly positive reviews on the Social Medias; apparently there are significant numbers of people who have heard a lot about this AI Art stuff, but never really seen any. They seem to like mine! :)

2022/08/29

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! :)

This is boring, post a picture!

A strange surreal owl-thing or something
2022/08/14

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:

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:

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. :)

2022/01/10

More on NFTs and Copyright

Just the other day, we talked about what’s actually inside an NFT, and what you get when you “buy” one.

One of the things I wondered was whether there are any NFTs that, when you buy them, you actually get full control and ownership of the digital content associated with it; as in an actual transfer of copyright.

This turns out to be a variously interesting question! In the US, we have Title 17, chapter 2, paragraph (or whatever) 204.a which reads:

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

US Copyright Law

Here in the Age of Digital Everythings, it is naturally unclear just what “in writing and signed” means. Does email count as “in writing”? Does some sort of random “e-signature” thing count as “signed”? Does someone having clicked “Okay” on a box saying “Do you hereby sign this?” count?

There appears to be a limited amount of case law on this subject. You got your Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., Appeal No. 12-2102 (4th Cir. July 17, 2013), which considered inter alia

whether a subscriber, who “clicks yes” in response to MRIS’s electronic TOU prior to uploading copyrighted photographs, has signed a written transfer of the exclusive rights of copyright ownership in those photographs consistent with Section 204(a).

and noted that

Although the Copyright Act itself does not contain a definition of a writing or a signature, much less address our specific inquiry, Congress has provided clear guidance on this point elsewhere, in the E-Sign Act.

Basically the E-Sign Act says of various legal transactions that “a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation”, and qualifies that with some definitions and exceptions and stuff.

The Met. Reg’l. Inf. Sys. decision further references yer Vergara Hermosilla v. Coca-Cola Co., 2011 WL 744098, (S.D. Fla. Feb. 23, 2011), which rather casually and in passing “reasoned that allowing the transfer of copyright ownership via e-mail pursuant to the E-Sign Act accorded with, rather than conflicted with” the purpose of Section 204 up there, and was therefore okay.

Given this rather sparse case law, it seems like simply being online / electronic / digital doesn’t prevent a transaction causing a transfer of copyright. The further question, then, is whether the specific online action of buying (selling) an NFT, can do that.

I will boldly state here that the answer is No. The simple fact that an API request came into some server (however well digitally signed and authenticated it was) that caused a block to be posted to some blockchain (however decentrally and securely) that led to some Solidity code being executed that in turn caused a different ID to be associated with a particular NFT, is not sufficient by itself to transfer any copyright ownership from one person (or other entity) to another.

Why not? Because what a court looks at to determine whether a copyright transfer (or other things, like assent to license terms) actually occurred isn’t anything about what happened with some bits inside a computer; rather, it’s the actual intent of some human somewhere when they took some action.

In the moderately famous Specht v. Netscape Communications Corp. – 306 F.3d 17 (2d Cir. 2002), for instance, the court was asked to decide if someone pushing the “download” button on a web page was bound by certain license terms, when those license terms were visible only if the user scrolled further down the page and clicked on a link leading to a copy of the license agreement. The license agreement started (sorry for the shouting):

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING NETSCAPE COMMUNICATOR, NETSCAPE NAVIGATOR, OR NETSCAPE SMARTDOWNLOAD SOFTWARE (THE “PRODUCT”), THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT.

In the analysis of this case, the court noted various prior decisions, holding that various “shinkwrap” and “click-wrap” and “browse-wrap” licenses (love the terms) either were or weren’t valid in various circumstances.

The basic finding in Specht here is that

The case law on software licensing has not eroded the importance of assent in contract formation. Mutual assent is the bedrock of any agreement to which the law will give force.

And I would claim that the fact that a particular request came into a particular server, can never in itself prove any human’s assent to anything.

(I can imagine some argument that, because the request was signed with some human’s private key, and because that human had reason to know that they should be very careful that no other person and no piece of software ever has access to that key without their consent, that by allowing the human and/or programmatic sender of the request access to their key, they implicitly assented to anything that that key was used for. But I hope and trust that auch an argument would fail, because it’s silly.)

It depends on the User Experience

On the other hand, given what we found earlier in this post, it seems very likely that a human action that results in the programmatic transfer of an NFT, can also result in the legal transfer of copyright ownership. The human action just has to be in writing and signed (within the still-somewhat-squishy meaning of the E-Sign Act), and has to be an action that actually indicates intent and assent to that copyright transfer.

So for instance (and like everything else in this post, I am not a lawyer and this is not legal advice and you can never sue me for anything and if you do I automatically win), say that when I went to buy an NFT I got a popup saying “Do you realize that by buying this NFT you will become the copyright owner of Thing X?” and it wouldn’t go through until I pressed Yes, and also the copyright owner would get a popup saying “Ceoln wants to buy your NFT for $D and do you want to allow this, realizing that if you do you will be transferring total ownership of Thing X to them?” and it also wouldn’t go through until they pressed Yes.

In this case, I would imagine that a court would be likely, if asked, to find that copyright transfer had actually occurred if we both pressed Yes and there was nothing weird going on.

Note that this has nothing whatever to do with there being an NFT involved; that system would successfully effectuate a copyright transfer if the owner of the copyright on Thing X was recorded in a MySQL database somewhere, or even not formally recorded at all. (Although in the latter case it would be harder to prove it had happened if one party denied it.)

A more convenient and less clear case would be if the person owning the copyright clicked Okay on a popup when the NFT was minted, saying “By clicking Okay, you agree to transfer complete ownership of the copyright on Thing X to whoever buys this NFT from you in the future”, and then when someone bought it they got a popup as above, and then the NFT changed hands without any further action by the copyright owner. Is a contract like that valid and enforceable? Can you make a contract with someone unknown and unspecified, such that it takes effect without any further action by you in the future when the other party becomes known? I don’t know! One interpretation would be that the creator is actually entering into a contract with the NFT marketplace operator, agreeing that in the future they will assign copyright; but could that actually make the assignment happen automatically in the future?

Further reading

There are a few documents here and there about copyright and electronic transfer and NFTs, most of them brief, acknowledging that everything is untested, and citing various possibly-relevant cases. There are various issues that we haven’t considered here (for instance “what happens when someone mints an NFT pointing at some text or image that they don’t own the copyright on themselves?”).

Copyright transfers by email and website terms of use
You can transfer a copyright without saying ‘copyright’
What are the copyright implications of NFTs?
No, NFTs aren’t copyrights
The Rise of Non-Fungible Tokens (NFTs) and the Role of Copyright Law – Part I Part II

Or, really, you could just do a web search on “NFTs and Copyright”.

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