So recently there has been a lot of debate on AI-generated art and its copyright. I’ve read a lot of comments recently that made me think of this video and I want to highly encourage everyone to watch it, maybe even watch it again if you already viewed it. Watch it specifically with the question “If an AI did it, would it change anything?”
Right now, AI-generated works aren’t copyrightable. https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/ This means you can not copyright the works produced by AI.
I work in games so this is more seemingly relevant to me than maybe it is to you. https://techcrunch.com/2023/07/03/valve-responds-to-claims-it-has-banned-ai-generated-games-from-steam/ Steam has outright said, earlier this month, that it will not publish games on its platform without understanding if the training data has been of images that aren’t public domain.
So right now, common AI is producing works that are potentially copyright-infringing works and are unable to be copyrighted themselves.
So with this information, should copyright exist, and if not, how do you encourage artists and scientists to produce works if they no longer can make a living off of it?
100%.
It gets tricky, though. For example, I’m using a website called “Sudowrite” to help me write a novel. I’ve been kicking this idea around since 2007. I have a general idea for what it should look like, but I always struggle with Act 2.
Literally over a decade’s worth of notes. And not a good Act 2.
But I was able to use ChatGPT and Sudowrite (especially its “Story Engine” tool) to finally understand what Act 2 was missing. And now I’m able to rewrite what I’ve already done, making it better. AI is a tool just like a word processor is a tool.
Lest anyone think I’m writing an ad here - I’m not. Per their FAQ, Sudowrite says that I own the copyright on anything that I generate with their stuff.
But if I don’t modify it, that’s clearly not true (as you mention). Furthermore, I can actually have it suggest things that might run counter to that idea.
I’ve had it suggest lines from Kafka - good lines, too. I’ve read Kafka, so I recognized them… but what if I didn’t? I don’t own the copyright on those lines, as Tom Scott points out in OP’s video. Kafka’s original German is public domain… most translations are not.
You can highlight some text in the tool and say “Write this in the style of Douglas Adams.” It knows who Douglas Adams is. It knows what his work sounds like. And the only way it knows is because its model was trained on his work. When I did this, one of the suggestions included Zaphod Beeblebrox, which was certainly not mentioned in my text. It also suggests spaceships and aliens and futuristic gadgets, all written in the kind of prose that you’d expect from Hitchhiker’s Guide to the Galaxy.
How would it know that, if it hadn’t read Hitchhiker’s Guide to the Galaxy?
It’s why Sarah Silverman is suing OpenAI. While the model may be a bunch of statistics, it also must know what her text is like - to some degree. We can argue over how, but going back to the AI suggesting Zaphod Beeblebrox… if I didn’t know HGTTG maybe I’d think that’s a cool name for a character? How can Sudowrite say I own the copyright when it’s clear that they don’t own it, either?
Which sort of brings me back to the beginning. AI has the potential to be a wonderful tool - again, like going from a typewriter to a computer. I have had this idea for literally 16 years now, and Sudowrite was literally a game changer. I knew all of act 1, act 2 was… ehhhh, and then act 3 was never satisfying without a good act 2. I knew where I wanted to go, but not how to get there. AI really helped, because it understands story structures - and how to make good stories (with some prodding - it’s not perfect). And now, whenever I’m stumped, I can type some stuff into the prompt and it’ll generate ideas for me.
But that only works if we really figure out where the line is for copyright. I’m trusting what Sudowrite is telling me… but I’m taking a risk, because what if they’re wrong?
Keep in mind that you cannot copyright ideas. You copyright the specific implementation of those ideas. So simply mentioning Zaphod Beeblebrox doesn’t trigger anything to do with copyright, but if you had a word for word introduction of Zaphod Beeblebrox copied straight from Hitchhiker’s Guide that would be a problem.
Then after that you can normally have “de minimus” use, where you can use a small portion (think quotes, short phrases etc). As long as your work can’t be used as a replacement for the original then you are normally in the clear (legally speaking, as far as copyright goes).
But none of this goes into trademark law, but that’s a whole other thing and are generally easier to avoid too (e.g. don’t use the word “coke” to sell your drink).
TL;DR: As long as the AI doesnt spit out a verbatim copy of the original, and then if you copied it verbatim from the AI, then you’d be in trouble.
I am not a lawyer, just a dude interested in copyright law.
I don’t know about US law, but in Europe you certainly can, and it’s an issue over and over again ending up in courts.
Yes it does. Fanfiction e.g. is considered infringement of the creator’s right, and that doesn’t extend to the exact verbatim text but to general plots, names, etc. It’s even infringement if you write a story about „Härrie Pötter“, since it’s immediately obvious that it’s based on Harry Potter.
Some years ago a German discounter sold a costume that was an obvious reference to the TV depiction „Pipi Langstrumpf“, a famous character by Swedish author Astrid Lindgren. Mind you, in essence it was just a really cheap wig and a dress somewhat resembling a tv character. The company owning the rights on the character sued and won.
Edit: oh! I missed the part where there were two courts that decided it was infringement but in the end the highest court overruled that and said it’s not: https://www.lto.de/recht/hintergruende/h/bgh-urteil-pippi-langstrumpf-romanfigur-urheberrecht/
Which only proves that all of it is completely arbitrary and just a matter of opinion. /Edit
In another case, someone took a photo of a soldier, cut out the soldier, turned it into an outline, and printed and sold t-shirts of that. If you took the shirt and put the photo next to it, it was immediately obvious it was based on the photo. Here the court had no issues, because in their opinion it was too far away from the original work to be compared with it. 🤷♀️
So, it’s quite impossible to draw a line between an idea and an implementation, and that’s why thousands and thousands of infringement cases are ending in front of courts, and in the end the only relevant factor is the opinion of the court.
The relevant concept for this is copyright protection for fictional characters.
It’s a bit more complicated than that, as evidenced by the fact that J. K. Rowling was not the first person to write a story about a magic user named Harry Potter.
I’m not entirely sure that it must have “read” her book in order to produce the content that she claims that it must have.
For example - you can read wikipedia, Goodreads, NYT theater review, NPR musical review, Guardian review… and many other reviews and discussions of the book or stage performance to get a sufficient understanding of its contents without ever having had access to the text of the original book.
Just as my old English teacher would note that reading the cliff notes was not reading the assigned text, so too reading reviews and summaries isn’t reading the original text.