Ehhh that’s like saying an artist who studies other art pieces and then creates something using combined techniques and styles from those set pieces is what ???? Now liable ???
An AI is not a person. Automated transformation does not remove the original copyright, otherwise decompilers would as well. That the process is similar to a real person is not actually important, because it's still an automated transformation by a computer program.
We might be able to argue that the computer program taking art as input and automatically generating art as output is the exact same as an artist some time after general intelligence is reached, until then, it's still a machine transformation and should be treated as such.
AI shouldn't be a legal avenue for copyright laundering.
Now we are in Ship of Theseus territory. If I downsample an image and convert it into a tiny delta in the model weights, from which the original image can never be recovered, is that infringement?
Except the machine is not automatically generating an input
> automatically generating art as output
The user is navigating the latent space to obtain said output, I don't know if that's transformative or not, but it is an important distinction
If the program were wholy automated as in it had a random number/words generator added to it and no navigation of the latent space by users happened, then yeah I would agree, but that's not the case at least so far as ml algos like midjourney or stable diffusion are concerned
That's still automated in the same way that a compiler is automated. A compiler doesn't remove the copyright, neither does a decompiler. This isn't different enough to have different copyright rules. There are more layers to the transformation, but it's still a program with input and output.
I'm not sure what you mean by "navigation of latent space". It's generating a model from copyrighted input and then using that model and more input to generate output. It's a machine transformation in more steps.
The output is probably irrelevant here, the model itself is a derivative work from a copyright standpoint.
Going painting > raw photo (derivative work), raw photo > jpg (derivative work), jpg > model (derivative work), model > image (derivative work). At best you can make a fair use argument at that last step, but that falls apart if the resulting images harm the market for the original work.
It's not clear at all whether the model is a derivative work from a copyright standpoint. Maybe they are, may be they are not - it's definitely not settled, the law isn't very explicit and as far as I know, there is no reasonable precedent yet - and arguably that would be one of the key issues decided (and set as precedent) in these first court battles. I also wouldn't be surprised if it eventually doesn't matter what current law says as the major tech companies may lobby passing a law to explicitly define the rules of the game; I mean if Disney could lobby multiple copyright laws to protect their interests, then the ML-heavy tech companies, being much larger and more wealthy than Disney, can do it as well.
But currently, first, there is a reasonable argument that the model weights may be not copyrightable at all - it doesn't really fit the criteria of what copyright law protects, no creativity was used in making them, etc, in which case it can't be a derivative work and is effectively outside the scope of copyright law. Second, there is a reasonable argument that the model is a collection of facts about copyrighted works, equivalent to early (pre-computer) statistical ngram language models of copyrighted books used in e.g. lexicography - for which we have solid old legal precedent that creating such models are not derivative works (again, as a collection of facts isn't copyrightable) and thus can be done against the wishes of the authors.
Fair use criteria comes into play as conditions when it is permissible to violate the exclusive rights of the authors. However, if the model is not legally considered a derivative work according to copyright law criteria, then fair use conditions don't matter because in that case copyright law does not assert that making them is somehow restricted.
Note that in this case the resulting image might still be considered derivative work of an original image, even if the "tool-in-the-middle" is not derivative work.
You seem to be confused as to nomenclature, transformative works are still derivative works. Being sufficiently transformative can allow for a fair use exception, the distinction is important because you can’t tell if something is sufficiently transformative without a court case.
Also, a jpg seemingly fits your definition as “no creativity was used in making them, etc” but clearly they embody the original works creativity. Similarly, a model can’t be trained on random data it needs to extract information from it’s training data to be useful.
The specific choice of algorithm used to extract information doesn’t change if something is derivative.
You seem to be confused, transformative works are still derivative works. Being sufficiently transformative can allow for a fair use exception but you may need a court case to prove something is sufficiently transformative to qualify.
> Automated transformation does not remove the original copyright
Automated transformation is not guaranteed to remove the original copyright, and for simple transformations it won't, but it's an open question (no legal precedent, different lawyers interpreting the law differently) whether what these models are doing is so transformative that their output (when used normally, not trying to reproduce a specific input image) passes the fair use criteria.
1) the artist is not literally copying the copyrighted pixel data into their "system" for training
2) An individual artist is not a multi billion dollar company with a computer system that spits out art rapidly using copyrighted pixel data. A categorical difference.
On 1, human artists are copying copyrighted pixel data into their system for training. That system is the brain. It's organic RAM.
On 2, money shouldn't make a difference. Jim Carrey should still be allowed to paint even though he's rich.
If Jim uses Photoshop instead of brushes, he can spit out the style ideas he's copied and transformed in his brain more rapidly - but he should still be allowed to do it.
A human can grow and learn based on their own experiences separate from their art image input. They'll sometimes get creative and develop their own unique style. Through all analogies, the AI is still a program with input and output. Point 1 doesn't fit for the same reason it doesn't work for any compiler. Until AI can innovate itself and hold its own copyright, it's still a machine transformation.
> On 1, human artists are copying copyrighted pixel data into their system for training. That system is the brain. It's organic RAM.
They probably aren't doing that. Studying the production methods and WIPs is more useful for a human. (ML models basically guess how to make images until they produce one that "looks like" something you show it.)
They do sometimes, or at least they used to. I have some (very limited) visual art training, and one of the things I/we did in class was manually mash up already existing works. In my case I smushed the Persistence of Memory and the Arnolfini portrait. It was pretty clear copycat; the work was divided into squares and I poorly replicated the Arnolfini Portrait from square to square.
I think the parent's point about (2) wasn't about money, but category. A human is a human and has rights, an AI model is a tool and does not have rights. The two would not be treated equally under the law in any other circumstances, so why would you equate them when discussing copyright?
Have to disagree with point 1, often this is what artists are doing. More strictly in the music part (literally playing others songs), less strictly in the drawing part. But copying, incorporating and developing are some of the core foundations of art.
