[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.