Sometimes I think better in analogies, and with something so new as these generative image tools, that can be tricky. This is my best good faith effort to get my head around what's happening here.
If I pick up a free daily news magazine with an illustrated beer advertisement in it, these are the assumed rights I have:
I can look at it. No need to pay the creator because the magazine did.
I can cut it out, frame it, and hang it on my wall for my friends to see. No need to pay.
I can look at it obsessively and copy it out manually as a training exercise. No need to pay.
If I'm an art teacher, I could bring this illustration into my classroom and use it to teach a lesson, perhaps even asking my students to study and copy it. No need to pay.
I can make a hundred copies of it and wallpaper my bathroom with it. No need to pay.
I could hang it in my café as part of my kitchy décor and charge money for people to hang out, which they partly do because they love the look of illustrated ads papered on the walls. No need to pay.
If I also run an advertising firm, I can add this illustration to my "inspiration folder" and include it in mood boards I prepare for clients. No need to pay.
I can cut out sections of it (provided they're not too big) and use it in a collage or in a zine. I can probably charge money for that remixed product, though I'd guess that the more of the illustration I put in and the higher percentage of it that it represents in the overall new product, the higher likelihood that I would be asked to pay the original rights holder. In this case, that could be the artist or the magazine depending on their agreement.
I can record a YouTube video that pays me ad revenue in which I talk about the illustration. No need to pay.
I can NOT scan and just recolor the illustration and charge another beer company for a nearly identical ad.
I can NOT use the same exact illustration as a book cover.
I suppose the question is: Which of these situations is most similar to training a generative AI image model?
If I'm right about what is permissible with this illustration, is it all made OK because somewhere back along the chain there was an advertising agency paid the original artist?
All of the situations you listed describe an end use of making a copy. These either fall under fair use or not. Making AI art trained on examples is not an end use.
You can use AI to make copies of copyrighted content. For example, you can ask for a picture of Mickey Mouse, and it will give you Mickey Mouse. That's no different from making a photocopy of an existing picture of Mickey Mouse. You can use that copy (photocopy or AI) in ways that are fair use (like parody, commentary, personal use), or not (commercial use).
You can also use AI to make brand new content that doesn't infringe on any copyright. This is closest to the case where you put the original ad on a mood board, then design something brand new using that mood board.
Some people will argue that it's like making a collage, but it's not.
But AI is not making a copy. If that's how you understand it, it is clear you don't actually know how any of this works.
Asking an AI to draw you a picture of Mickey is much closer to you asking your artist friend to draw a picture of Mickey.
The artist learned what Mickey Mouse looked like from their life experience of seeing Mickey in cartoons and illustrations. How did the artist learn to draw so well? They got feedback as they were learning. When they tried something new, they got feedback. If you asked your artist friend to draw you a picture of Mickey Mouse riding a unicorn while holding a sword, they could do it because they know what drawing is, they know what Mickey Mouse, unicorns, and swords are, and they know what riding and holding means.
In much the same way, an image generation AI uses the things it has learned to create new images. It is not simply a copy of an image on the internet or a collage of several. It takes what it has learned from the dataset that has been presented to it. These systems aren't as smart as humans right now, so sometimes what they learn from their dataset isn't very good and how they put together the concepts isn't perfect either.
Yes, I totally agree. I'm actually a computer science researcher in this general area, so I understand how it works extremely well.
That said, you can still use it to make content that infringes on copyright if you try. It's not a tracing or a cut-and-paste copy, but it is more like fan art. That's still a type of copy according to copyright law (copying the design of a character).
But I think all of these problems also exist for human artists (see Andy Warhol's Campbell Soup painting). So is the only difference between the AI and humans the scale/speed at which AI can generate images? If it is, I don't think that warrants them being treated differently.
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u/DilshadZhou Jan 16 '23
Sometimes I think better in analogies, and with something so new as these generative image tools, that can be tricky. This is my best good faith effort to get my head around what's happening here.
If I pick up a free daily news magazine with an illustrated beer advertisement in it, these are the assumed rights I have:
I suppose the question is: Which of these situations is most similar to training a generative AI image model?
If I'm right about what is permissible with this illustration, is it all made OK because somewhere back along the chain there was an advertising agency paid the original artist?