This is going to be a mess until higher courts in the US or Europe make some rulings. Personally, I think they are going to favor the copyright holders. A few billion handed out to damaged parties, and future commercial systems only trained on licensed content.
In other words, in your example, the painter is not necessarily free to distribute their painting while ignoring the original image's copyright.
https://petapixel.com/2022/12/08/photographer-loses-plagaris... is one of the more recent applicable cases here, where the original artist failed to uphold their claim, which surprised most people.
If that is not the case, if Midjourney's output can not be copyrighted, that might destroy its business model.
In all seriousness, midjourney is like any other tool. You can break the law with it, big surprise. It should still be on the person that broke the law, not the makers of the tool. If you go down the “can’t use my art as training data” how far do you push it? I watched Batman, does that mean if I draw caped super heroes I am stealing training data? Wouldn’t that apply to all comics after Superman? Isn’t he guilty of derivative work himself?
Also, nobody is being harmed by this. AI is always derivative. Nobody is interested in copies or impressions of popular art, otherwise the guy selling animes on velvet at the local art fair would be making more money. This just sounds like a Luddite shaking his fist at this perceived enemy.
in order for that analogy to even remotely be applicable, midjourney would have to be a program you run on your own computer and not a service running on midjourney's computers that does what you ask it to.
> In all seriousness, midjourney is like any other tool. You can break the law with it, big surprise. It should still be on the person that broke the law, not the makers of the tool.
that would be midjourney, since they're both the creators and operators of their model.
> If you go down the “can’t use my art as training data” how far do you push it? I watched Batman, does that mean if I draw caped super heroes I am stealing training data? Wouldn’t that apply to all comics after Superman? Isn’t he guilty of derivative work himself?
you just called AI "a tool", that's why it's different.
> Also, nobody is being harmed by this. AI is always derivative. Nobody is interested in copies or impressions of popular art, otherwise the guy selling animes on velvet at the local art fair would be making more money. This just sounds like a Luddite shaking his fist at this perceived enemy.
that's an argument against IP law in general, not an argument against holding companies which create and operate deep-learning models to the same standards as everybody else.
So your argument is that the tool running remotely as a service somehow makes it different from one running on your local computer?
So if someone copies the contents of a novel into Google Docs, Google is liable for their copyright infringement, but if they paste it into Word running on their computer, all of the liability is on them?
At what point does the liability shift? What if all of the functionality is implemented in JavaScript in the browser, rather than running on someone else's server?
What if they run all but the last layer of the model on the server, then finish the computation locally?
I don't think the situation is nearly as cut and dry as you make it out to be.
The vast majority of artists make almost no money off their art. Original or otherwise.
Some superstar artists make some money. But that art doesn't have to be original [0], see eg Duchamp's urinal, or the popart people copying comics. Or see https://en.wikipedia.org/wiki/Cathedral_Square,_Milan_(paint...
Gerhard Richter's painting 'Cathedral Square, Milan' is a 'bad' copy of a photograph:
> The source after which Richter executed Domplatz, Mailand was a newspaper photograph that was in focus, from which Richter clipped a section and modified it.
> It was sold by Sotheby's in New York on 14 May 2013 for 37.1 Million dollars, breaking Richter's own record price for an artwork by a living artist, his 1994 32.4 million dollar painting Abstraktes Bild (809-1).
[0] Of course, motivated reasoning can always find some aspect that makes the superstar artists and their art original. But the same amount of mental effort can also make 'the guy selling animes on velvet at the local art fair' original.
I believe the point was rather that the output makes it obvious the "tool" was trained on copyrighted work.
As an aside to your justification though, if a main purpose of a tool is to circumvent copyright, that tool is usually illegal.
> I watched Batman, does that mean if I draw caped super heroes I am stealing training data?
It means if you draw a near copy and tried to sell it, you are committing copyright "theft" (I don't like the term, but that's what it's called).
> Nobody is interested in copies or impressions of popular art, otherwise the guy selling animes on velvet at the local art fair would be making more money
People are absolutely interested. I couldn't get RedBubble to even print a non-copyrighted work (which they mistakenly thought was copyrighted) that I had altered. Just because some people are getting away with it, doesn't mean it's legal or wouldn't immediately come to a stop if they came under scrutiny.
> This just sounds like a Luddite shaking his fist at this perceived enemy.
Luddites had some very good points, so he's in good company.
I would argue that original creators are being harmed by this. Not in a traditional sense, or even in a legal way with any precedence but in a thousand cuts sort of way that is novel.
Oh, wait. It isn't the user. Spotify and Midjourney are actually the guilty party in this scenario, for distributing copyrighted works and probably for storing them without permission in the first place.
Midjourney may be a tool, but it is a tool containing a large body of copyrighted and unlicensed images, including trademarks, and even illegal content. And that is what the court cases are going to be about.
“If You knowingly infringe someone else’s intellectual property, and that costs us money, we’re going to come find You and collect that money from You. We might also do other stuff, like try to get a court to make You pay our legal fees. Don’t do it.”
If some site that the allowed anyone to upload and download anything put that as their TOS, would they be absolved of copyright liability also?
It raises fine-grained questions. Is Midjourney generating/offering a copyrighted image the violation or is the user downloading it the violation?
"Your honor, I blame the users/meddling kids"
If that was the case all of the following would be fair use (hint they typically are not).
- making a movie from a book (I mean it's a pretty big variation) - making a sequel/prequel to a book, movie using the characters of the book - making new comic stories using Mickey Mouse/Batman/Superman... - Making merchandise using redrawn characters from comic books... ...
Also it's important to note that one of the important aspects to judge fair use is commercial interest, i.e. what is allowed for an individual privately, might very well be copyright infringement for a company (like Midjourney) who sells a commercial product.
Midjourney is a paid service which uses copyrighted works as source, without any agreement with the copyright holders, while declaring that its users own all the assets that it creates for them.
Basically the AI doesn't have a copyrighted image in its data set, but it will go grab YouTube screenshots or images from Google Images or something.
I think it’s going to go a similar way with „AI“ - lots of court cases, lots of different and nuanced rulings converging on a general idea what the legal boundaries are but with many grey areas in between.
I think you're allowed 30s clips (or something) while staying within fair use (see: film YouTubers are able to use some scenes and clips)
Thus, you could imagine a Google that would show you the clip of the movie or link to a 30s scene from the movie and then prompted you to rent/buy the movie to see more.
I think Google would get away with that. I'm not positive or a lawyer.
Is this different because it's still images only? Again, Google shows copyrighted images in its image search (usually thumbnails, and then maybe serves the full image from the source? Or sometimes sends you to the source?)
It's not quite clear to me that simply showing the image is copyright infringement - non generative ai companies do that. So where is the line?
My understanding is that it really should be incumbent on the user (like it would be if your search found copyrighted material) but I don't have a legal basis for that! It just seems like nobody is suing Google for image search.
This isn't complicated, we have laws on the books, and I hope legislators learned their lesson after the "Uber's not a taxi company, and AirBNBs are not like hotels"
So if someone makes a forgery of, say, a picasso, who do we blame: The forger or the brush?
> This isn't complicated
This concerns copyright law, which is handled case by case, and deals with very fuzzy definitions like "fair use" or what constitutes "transformative works", and things like "impact in the marketplace".
So yes, this is a very complicated topic.
The tool may be a brush, it may be a pencil, it may even be a contraption or machine of some kind. It could even be a camera, or software. This does not matter. The result is typically labelled "a studio", "a reproduction", or if has significant deviations from the original "a paraphrase".
Some artists include elements of the work of other artists in their own work regularly, even copyrighted "characters". The thing known as "sampling" did not originate with rap music. Here there's a line somewhere (just like in rap) that, how much is too much? The answer is always that some cases are "fair use" and others are not.
My concern in all this is that people scared of this new tool (AI) will react in a way that leads them to demand restrictions in the way that traditional artists have worked like, forever.
In my view the AI model is no different from a camera, or that combined with some software suite like blender, photoshop, or even gimp. It's just a tool. And, well it can create reproductions. Reproductions are just that, and no more.
Require consent for any training use.
This may also require compensation.
When was the last time you heard the original Happy Birthday song sung on TV? It is now generally avoided, because producers don't want to pay royalties to the copyright holders.
You had to see it at some point, the way in which you see it is the issue, not the memory of it.
If you're arguing that the AI is just like a random human browsing the web and they happened upon these things and now they are allowed to sell those things back to me. Man that seems like so uncompelling of an argument to me.
We're not allowed to do this in any other context. I can't learn music and go tour, take requests from the audience, and act like it is mine. No credit or anything. Sure on a small scale, and there are times when it's unclear, but I can't go to Wembly without paying the original owner when someone asks me to play "Thriller by Michael Jackson"
I don't know if this is the case, but if these images were released to press & public as part of a media resource pack with a permissive license used to market the movie (which I believe is commonly done in this industry), I'd have a hard time empathizing with the viewpoint that Midjourney is doing something wicked by including it in their training data.
It is also shockingly easy to do.
The generative "AI" sports out an image it's owners claim is original. That's the infringement.
