[O__________O]

As I am sure you’re aware, already posted response US Copyright’s ruling related to authorship here, so will not be repeating myself:

https://news.ycombinator.com/item?id=35247377

Will say that post you linked to also states, “17 U.S.C. 101 (definition of “compilation”). In the case of a compilation including AI-generated material, the computer-generated material will not be protected outside of the compilation.” — the problem is that unlike say for example a compilation of recipes, where the individual recipes are not protected, but the compilation is, there is no clear delineation within a singular work of art such delineation. As such, injecting such delineations is counterproductive and shows no understanding of the nature and spirit of the rule of law. Further, while their opinion appears to be a prompt is somehow a recipe and not a novel expression that merits copyright, clearly photographs of the output of a recipes are commonly photographed and given copyright protection.

Sure others have made far more compelling arguments against the ruling, but to me, the ruling lacks merit as is.

[danShumway]

> a prompt is somehow a recipe and not a novel expression that merits copyright

People keep bringing up photographs, I think the better analogy is commissions. And in fact, the copyright office points towards commissions in its explanation of its policy.

Under current copyright law, if I work with an artist to produce a commission by giving that artist repeated prompts, pointing out areas in the image I'd like changed, etc... I don't have any claim of copyright on the artist's final product unless they sign that copyright over to me. My artist "prompts" are not treated as creative input for the purpose of copyright.

I would love to hear an argument for why prompting stable diffusion should grant copyright over the final image, but prompting a human being doesn't grant copyright over the final image. Directing an artist is just as much work as directing an AI, and in many ways will put you much closer to the creative process and will give you more control over the final product. You can direct an artist in much more specific detail than you can direct stable diffusion. You can be a lot more involved in the creative process with a human artist. And just like with an AI, if you take that artist's final drawing and do your own work on top of it, you can still end up with something that's covered by copyright.

But despite that, we've never assumed you intrinsically get any copyright claim over the artist's final picture that they give you.

So the "prompt as a recipe" analogy seems to hold up pretty well for both AI generators and human "generators". All of the same questions and tests seem to apply to both scenarios, which makes me feel like the copyright office's conclusion is pretty reasonable: prompt-generated art isn't copyrightable, but prompts may be protected in some way, and of course additional modifications can still be covered.

Yes, there's grey area, but no more grey area than already exists in commissioning, and the creative industry has been just fine with those grey areas in commissioning for a long time; they haven't been that big of a deal.

[O__________O]

“Commissions” involve a human.

[danShumway]

Isn't this just agreeing with what the copyright office said?

When prompting a human being, that human makes the image, so that human gets the copyright. When prompting an AI, no human makes the image, so no human gets the copyright. But in both cases, the prompter doesn't.

We've never treated writing a description of what to draw or providing iterative feedback on an image as an act that grants someone copyright over that image.

[Riverheart]

Right it’s more like making a free art request. Except now instead of just humans, you can also ask an AI.

[O__________O]

Point is the critical issue to copyright is lack of a human in creating the work. A commissioned work is done by a human, as such it’s irrelevant as a comparison.

[danShumway]

It's completely relevant. In both cases, you are describing what image you want created.

The fact that you are describing it to a human isn't materially different from the fact that you're describing it to an AI. I mean, heck, this has been the exact argument people have used about why it's OK to train an AI on copyrighted material -- that it's just like a human "learning" from the image. And now comparisons with a human aren't allowed? You can't have it both ways, you can't argue that a generative AI isn't any materially different from a human when it's imitating or learning from a work, but that using that AI suddenly puts the prompter in a completely brand new category of copyright. :)

And we're really talking about the prompter here, not the AI. Focusing specifically on the prompter, what precedent do we have in copyright law that describing the image you want created is a creative act? None, as far as I can see. And we have a ton of precedent that it's not a creative act, ie the entire history of copyright policy around prompting/directing. Nobody argues that directing a creative process means you inherently get copyright over the result.

[superbatfish]

It think the parent's point here could be rephrased like this:

Copyright law treats "involved a human" vs. "involved a machine" as fundamentally different just because humans are special-cased, not due to any deeper reason. Just by fiat.

The law gives special consideration to humans "just because". Therefore, if one situation involves a human in a particular role and another situation involves a machine, then there is no useful analogy to be drawn -- as far as the law is concerned. Even if the analogy makes perfect sense to you and me, the law treats humans and machines as fundamentally different, so all bets are off.

[ClumsyPilot]

> a prompt is somehow a recipe and not a novel expression that merits copyright

Is it not? Does typing in 'cat' in SD, as millions of people will, count as novel expression?

[O__________O]

Millions of people have taken photos of Mona Lisa, none are novel, all are very much protected by copyright.

[danShumway]

No, this is highly misleading, if not outright wrong.

First, a picture taken of the Mona Lisa is only covered by copyright if it contains additional human creativity. Now, the bar for that is very low, and in practice many people don't challenge that copyright very often. But a perfect recreation of the Mona Lisa with a camera is not covered by copyright. You need human creativity as part of the process, and merely taking a picture is not enough on its own. There's actual case-law on the books about this[0].

Second, the additional creativity protects the photo, not the original picture itself. So in the most recent case with AI images used in a book, that additional creativity protected the book and the arrangement of those images, but it did not protect the images themselves -- in other words, entirely consistent with a photograph of the Mona Lisa.

To analogize that to AI art, it would absolutely be the case that doing additional modifications on an AI image would make the resulting image eligible for copyright. It would not make the base image spit out by the AI eligible for copyright, only the derivative work.

Where prompts are concerned, the US has argued that some prompts would be eligible for some kind of IP protection on their own. But a prompt that doesn't meet copyright muster on its own would not be eligible, and the same rules apply to photography.

[0]: https://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel....