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Culture War Roundup for the week of December 19, 2022

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On the copyright side, I think it makes sense that the output of AI art generators can't be copyrighted. At least, as long as the use of copyrighted art to train an AI model isn't copyright infringement (I think it would pretty clearly be fair use currently)... 3. Produce new works in that same style, whose copyright you own but the original author doesn't

To an extent, (and even more so where steps 1/2 are replaced by 'use img2img'), though the state of copyright for 'traditional' cloning of media kinda makes this a weird or awkward question. The United States doesn't have any case quite as close to the line as the UK's infamous Red Bus case, but the Korean War stamp is pretty close: there certainly are ways in which even traditionally-created 'art' can be so derivative that it is infringement, even if the processes used to make the piece would otherwise allow copyright.

But these standards are incredibly tight. I like to use Rafman and similar 'found/outsider' art in furry contexts, simply because their 'transformative' nature is often limited to filing off signatures, but for a mainstream one, this Warhol v. Goldsmith case may fall one way or the other... and you'd have to overtrain the everliving hell out of a diffuser to get something that narrowly replicative. Indeed, the same complaints (in addition to the juvenille nature of the 'joke') would apply to any diffuser that produced the same result as the art in Leibovitz v. Paramount (cw: artistic nudity, mpreg), which is a clearly settled case. Or for a more boring example, see Cariou v. Prince. There's a pretty wide variety of contexts where lifting and directly copying an original work, even without commenting on that original work, is still considered transformative use, and while AI art can fall short of that, it's not a unique tool in doing so (compare: literally any color filter), and even the most moderately useful models will not favor doing so normally.

((And this entire thing is statutory interpretation: Congress could theoretically change the whole approach overnight for better or wo- ha, sorry, can't keep a straight face; any changes would be a clusterfuck even if best-intended, and more likely it'd get written by Disney.))

I do think there are novel technical and social problems, though -- img2img or overtuned models can launder art theft in ways that current perceptual-hash-and-search methods do not detect but clearly would not meet even the low standards of Cariou, we might want to consider AI-gen stuff more inherently economic than traditional 'inspiration', ML spam is a novel danger to artist communication and coordination.

These questions do not have obvious answers to me and I understand why no one wants to be the first to find out!

Yeah, it's perfectly reasonable that a company wanting to make AI art tools doesn't want to stick their foot into that bear trap; it'll be a huge resource drain away from their core mission, even in the optimistic case that they'd win every matter.

The trouble's that they don't really have a choice of avoiding the question; they've just decided to let someone answer it for them.