What you can't do is use those recreations for commercials purposes. You can't sell your paintings of Mario. You can't decorate your business with Mario drawings.
That's why I've always felt like the idea that AI should be blocked from creating these things is generally not the right place to look at copyright. Rather, the issue should be if someone uses AI to create a picture of Mario and then does something commercial with it, you should be able to go after the person engaging in the commercial behavior with the copyrighted image.
With you until here for several reasons:
1. It's not possible for you as an individual consumer to know whether or not the AI result is a violation, given an AI that has been trained on copyrighted works.
2. Before you, the AI consumer, uses the generated result, a company (in this case OpenAI) is already charging for it. I'm currently paying OpenAI. That AI is currently able and willing to sell me copyrighted images as part of my subscription. Frankly that should be illegal, full stop.
I look forward to AI enhanced workflows and I'm experimenting with them today. But it's morally indefensible to enable giant corporate AIs to slurp up copyrighted images/code/writing and then vomit it back out for profit.
I see what you're saying in some cases, but in the cases where the user is explicitly attempting to create images of copyrighted characters (e.g. the Mario example), they would definitely know. I honestly don't see this as a practical issue - as far as I'm aware (and like most on HN I follow these things more than the average person), there aren't a lot of concerns about inadvertent generation of copyrighted material. It's certainly not at issue in the NYT lawsuit.
2. Before you, the AI consumer, uses the generated result, a company (in this case OpenAI) is already charging for it. I'm currently paying OpenAI. That AI is currently able and willing to sell me copyrighted images as part of my subscription. Frankly that should be illegal, full stop.
Totally fair, but I feel like it's a bit more of a gray area. If I use Photoshop to create or modify an image of Mario for personal use, we'd call that fine. I grant you that here OpenAI is doing more of the "creating" than in the Photoshop example, but we still do generally allow people to use paid tools to create copyrighted images for personal use.
I'd also pose a question to you - what if OpenAI weren't charging? Is it acceptable to train an open source model on copyrighted images and have it produce those for personal use?
I guess I just understand the law to revolve more around what the end product is used for, as opposed to whether a paid tool can be used to create that end product.
Probably not for anything commercial, not for any exhibitions or public viewing etc. You'd have to check the actual trademarks etc.
Basically, IANAL, but if you just draw a picture of Mario, all you can do is hang it on your fridge. If you make it out of colored oatmeal, that may be enough of a transformative work for you to be able to sell and exhibit it. Or, say, a satirical cartoon for your newspaper featuring Mario, that might also be okay.
