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Trademark law is quite different from copyright law, I would be very hesitant to stake a claim that nothing made with Stable Diffusion could serve as a trademark.
Yes, but most importantly, this precedent, which is a shocking timebomb for copyright law generally. It is the clearest example of someone being granted copyright protection for a style, and while I'd like to say "I can't imagine this insanity holding up to continued scrutiny from appeals courts," it's actually all too easy too imagine.
What people forget is that copyright law is a hard case of total regulatory capture. No one cares about copyright law but content industries and aging geeks. The main practical consideration in copyright law is, "does this help content industries make money?" It's extremely likely that, over the next several decades, Congress will adopt some kind of compulsory licensing scheme for original artwork, such that model trainers will owe $0.01 (or $1, or...) per picture they incorporate into their models. This will help to shut down amateur and FOSS efforts toward AI, ensuring that only big players can afford to make advances. The upside for government is, big players are much easier to regulate.
Is there a meaningful content industry for static artwork, though? I thought that of all the creative fields, the one that churns out drawings was still the most democratic one, perhaps because the advantage derived from capital accumulation over that which can be produced by a doodling teenager with no other hobbies is so small.
In the west, not really. In Japan? Yes, the manga industry is massive, and I’d say that qualifies as static.
It seems to me that for the manga industry, the sort of mechanistic drawing skill that generative image models can replace is closer to being a complement than to being a competitor, and for them to lobby for measures that would bog down the availability of AI is like if the car industry lobbied against industrial robots. (They're already paying assistants/the people who draw in the background poverty wages; surely replacing them with photoshop plugins would be even better.)
Shouldn't this apply to any other part of the industry as well? Anyone who's paid to produce artwork of this sort, whether they be a comic book artist or TV show character designer or video game advertiser or etc. could make use of AI art software to help at various steps along the way going from a blank canvas to the final product. To me, AI art software seems akin to Photoshop or a drawing tablet in how it would allow existing producers of 2D static art to be more efficient or effective in their work.
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Anything can theoretically be trademarked, as long as it meets the requirements. Rather, if you are, without permission, using as a mark something that someone else owns a copyright in, then you would presumably be liable for copyright infringement every time you used it. The USPTO would in most cases have no reason to know whether your trademark registration included unlicensed copyrighted elements; this is a fight the copyright holder would have to raise on their own. Depending on how derivative the trademark ultimately was, the copyright holder would in most cases have no idea any infringement had occurred (minus some whistleblower getting involved).
Statutory licenses are already the legal standard for music recordings and broadcast-to-cable television programming (see table on page 38 of this PDF). When tech innovators clash with content industries, a historical answer has been for Congress to impose a compulsory licensing scheme. I agree that $0.01 per image might be too little, but surely $1.00 per image would be prohibitively high in most cases of model development. The thing is, deciding the right price is something that can be handed to a bureaucracy to determine. The problem right now is that, as far as I can tell, all image models are just straight-up mass infringement. It's Google's "library of Alexandria" all over again, with technological innovation and the letter of the law coming into direct conflict. And it's not at all clear who will win, or what it will cost the rest of us.
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