An artist who infamously duped an art contest with an AI image is suing the U.S. Copyright Office over its refusal to register the image’s copyright.
In the lawsuit, Jason M. Allen asks a Colorado federal court to reverse the Copyright Office’s decision on his artwork Theatre D’opera Spatialbecause it was an expression of his creativity.
Reuters says the Copyright Office refused to comment on the case while Allen in a statement complains that the office’s decision “put me in a terrible position, with no recourse against others who are blatantly and repeatedly stealing my work.”
Because in a Jackson Pollock painting, the artist was in complete control of his paintbrush as it swung through the air. Not to mention the choice of brush, the amount of paint, the color, etc. If there is a blue streak in the upper left, it’s because Pollock wanted a blue streak in the upper left.
An AI prompt is more like handing your camera to a passerby in Paris and saying, “Please take a photo of me with the Eiffel Tower in the background”. If your belt is visible in the photo, it’s because the passerby wanted it there. That’s why the passerby, not you, has a copyright over the result.
Your first paragraph is just nonsense. Please go try to swing a paintbrush and get every drop exactly where you want. It’s not possible. It’s literally why pollock painted that way.
Being in control does not mean achieving what you “want” or intend.
You are in control of your car, even if you unintentionally hit a tree. Likewise, Pollock controls his paintbrush, it is held by his hand which only he can move. If he flicks paint on his friend’s new jacket that might not be his intent, yet he is still 100% responsible for that outcome.
Your words.
Yes, he wanted a blue streak in the upper left. That doesn’t mean he intended every last drop of blue paint exactly as it landed. He is nevertheless responsible for every drop of paint, because he controlled the paintbrush and he is the one who caused them to fall where they fell.
Likewise, a surgeon wants to cure a patient with a scalpel. He doesn’t necessarily intend every complication that happens to the patient. He is nevertheless fully responsible, because he fully controlled the scalpel that caused those complications.
Your logic literally applies the exact same to ai generated art. It’s quite clear you haven’t even tried it if you think that the artists are just asking for an entire image and then saying “all right. I’m all done here”.
Listen. I don’t think ai art should have a copyright either, but it has absolutely nothing to do with the logic you’re coming up with. Control net (or even just basic Adobe Photoshop now) allows anyone to do exactly what you are saying a “real” artist does.
The basic legal test has to do with control over the output. A prompt is not control. If you tell Stable Diffusion “draw a dog playing chess” then you do not control the creative choices made in the image. Thus, they are not protected.
That’s why Pollock paintings can be copyrighted: the key creative choices were controlled by Pollock. He wanted some blue streaks in one area and some red streaks in a different area.
To the extent that AI output can be controlled, it can be copyrighted. If you take a photo and tell an AI, “desaturate this photo” then there is only one possible outcome. The lack of color in the product was fully under your control. Likewise if you say, “Copy dog.gif from my Documents folder to the bottom left corner of the image”.
On the other hand if you say, “Add a dog to the image”, then not so much. Who determined what the dog would look like? Not you. So the dog is in the public domain.
And once in the public domain, it will likely remain there even if you iterate your prompts, like “Elongate the snout and widen the eyes”. For the same reason that you generally cannot copyright an image of the Mona Lisa even with minor alterations.
So if I tell the ai - create a canvas 12" x 12" and put 00FF13 colored paint via a 1" brush aligned 13 degrees in the upper left quadrant 2 inches down and to the right, then another in the bottom right quadrant 3" from the bottom and 2" from the right of 1200FF paint, is that not way more specific than buying paint at a store, doing some guestimation mixing of colors and splattering some on a canvas haphazardly?
Just trying to understand where the line of ML assisted art becomes non-artistic/non-copywritable. Is there a technical criteria? what about artists woh use Photoshop with ML derived filters for their final product? are those also not owned by the artist the moment that the ml tool is applied?
What if you create the model yourself with only your own training data? e.g. you are the only sole creator of the entire tool/model itself.
So many possibilities that create questions…
The cases where copyright was denied involved prompt-driven generative AI. At some point the artist admitted that some of the creative decisions were made by the AI.
In your first example, you made all the creative decisions. The same is true of many filters, for example if I apply a “50s cinema filter” then I know exactly what it will do. The AI doesn’t get to make any decisions.
On the other hand, if you tell the AI to “add some clouds to the image” and the algorithm decides where they go, then the sky it produces is not protected. Only the elements you controlled are.
You clearly don’t understand how (lots of sophisticated) AI art is made. At what point does the generative capabilities in Photoshop (which you can give prompts to) become not controlling the output? At which point does control net (which literally allows you to pose models and replace every single thing about a scene along with numerous other features) become “controlling the output”.
“All decisions have to be controlled by the artist” isn’t how art works either. See any sort of public art, or even the paintings you make by literally just pouring paint on a canvas or hanging a bucket of paint by a string and having it move across a canvas and drip.
At the point where a creative decision is made that the user did not control, that element is not eligible for copyright.
So to return to my example: suppose a photographer takes a photo of a model and asks an AI to add a dog to the image. Unless the dog comes from one of their other photos, they can’t copyright it (although they can still copyright the model).
Now suppose another photographer takes a photo of Mt Everest. They ask the same AI to add a dog to the image, which results in the same (or very similar) dog. The first photographer can’t sue the second one for copyright infringement, because the first one didn’t create that dog and therefore has no rights over it.
That’s like asking “How many alterations do I have to make to an image of the Mona Lisa to transform it into something I can copyright it as my own work?”
The answer is: it’s up to the judge. See: Lynn Goldsmith vs Andy Warhol
An artist pouring paint on canvas or hanging a bucket of paint on a string can still plausibly tell a judge that they controlled the output. The behavior of such mechanical devices is fully predictable by the user. Or they might claim that they controlled some elements of the output but not others. Then they can copyright the elements they controlled.
Of course if they want to lose their copyright, then they are free to tell everyone that they didn’t really have any control over the output. See: Monkey selfie.
You can copyright a tangible thing that you personally created but you can’t claim a copyright over the interaction of the public with what you created.
To the extent that members of the public contribute tangible creative elements to the work (for example inviting the public to decorate your work), those contributors will share the copyright with you over the final result.
Hmm… what about pendulum painting? Where you put paint in a bucket, put a hole in it, and let it swing back and forth over the canvas?
On one side he chooses paint and size of hole and initial path and so on, but on the other hand he let nature and physics do the actual painting for him.
In this case, it sounds like all the key creative choices (eg form, color, background) were made by the artist.
No they weren’t. Their brush was being influenced by every piece they had seen before. None of those arguments are any different than the resin was in control of the prompt when they requested the image. This is nothing more than human/biological exceptionalism.
Copyright law is absolutely based on human exceptionalism, because it is meant to incentivize humans.