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Culture War Roundup for the week of December 19, 2022

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Begun, the Butlerian Jihad has:

/r/dune is not accepting AI-generated art.

This applies to images created using services such as DALL-E, Midjourney, StarryAI, WOMBO Dream, and others. Our team has been removing said content for a number of months on a post-by-post basis, but given its continued popularity across Reddit we felt that a public announcement was justified.

We acknowledge that many of these pieces are neat to look at, and the technology sure is fascinating, but it does technically qualify as low-effort content—especially when compared to original, "human-made" art, which we would like to prioritize going forward.

Ok, the Dune one's a little funny given the in-universe history, but a pretty wide breadth of art-focused hosts have banned AI-generated art (to the extent they can detect it) or have sometime-onerous restrictions on what AI-genned art can be used. Some sites that still allow AI art, such as ArtStation or DeviantArt, have had no small amount of internal controversy as a result. Nor is this limited to art: StackOverflow's ban on ChatGPT-generated responses makes a lot of sense given ChatGPT's low interest in accuracy, but Google considers all AI-generated text spam as a category for downranking purposes, to whatever extent they care to detect it. And a lot of mainstream political position seems about what you'd expect.

Most of these are just funny, in no small part because alternatives remain (uh... maaaaaybe excepting Google?). This is a little more interesting:

We are writing in response to your correspondence of October 28, 2022 as counsel to Kristina Kashtanova. Kashtanova was recently granted copyright registration no. VAu001480196 for her work “Zarya of the Dawn” (the “Work”).

Subsequent to Kashtanova’s successful registration of the Work, the Office initiated cancellation of her registration on the basis that “the information in [her] application was incorrect or, at a minimum, substantively incomplete” due to Kashtanova’s use of an artificial intelligence generative tool (“the Midjourney service”) as part of her creative process. The concern of the Office appears to be that the Work does not have human authorship, or alternatively that Kashtanova’s claim of authorship was not limited to exclude elements with potential non-human authorship. We are writing to affirm Kashtanova’s authorship of the entirety of the Work, despite her use of Midjourney’s image generation service as part of her creative process.

Zarya of the Dawn isn't actually a good piece -- and not just for the gender Culture War reasons; its MidJourney use isn't exactly masterful and probably just an attempt to cash in on Being First -- but most art isn't good. Quality isn't the standard used by the Copyright Office or copyright law more broadly.

The standard is complicated, not least of all because copyright itself is complicated. Sometimes that's in goofy ways, like in Naruto v. David Slater et al. (better known as the Ape Selfie case), whether an animal had the ability to bring a copyright suit for a picture taken by that animal. While Naruto fell on statutory standing questions in an unregistered copyright suit, the Copyright Office issues a regularly-updated compendium of practices for those seeking registration that seems to reference it or a similar case, among other pieces:

As discussed in Section 306, the Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must be created by a human being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not satisfy this requirement are not copyrightable.

The U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit. Examples:

  • A photograph taken by a monkey

But while animal pictures or naturally-formed rocks are one example left outside of the scope of "authorship", it's not the only one:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

Most of these examples are trivial : size changes, manufacturing requirements, simple changes to a song's key, or direct output of diagnostic equipment. The most complex currently listed example is "A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern", which is the sort of highly specific thing that makes you sure someone's tried it.

It'll be interesting to see if the next update has text on AI-generation, and if so, if the Office tries to separate different levels of human interaction (or, worse, the models themselves).

The US Copyright Office's determinations do not control court interpretation of the Copyright Act, so it's possible that prohibitions on registering ai-generated or ai-assisted art or text would still leave some ownership rights. But it's unlikely, and registration is required before someone can get statutory damages. Now most people aren't going to care much about the legal exactidues of copyright for their Original Character Donut Steel 8-Fingers to start with. Because all copyright claims are federal or international law, and there is no federal small claims court (and no meaningful international court), these protections are fairly minimal for hobbyist or end-users even when present and when the user cares, anyway.

But it isn't too hard to think of problems that could come about, anyway. There's already a small industry of pirates that scrape public spheres for artwork and creations to repeat (cw: badly drawn cartoon butts). To what limited extent these have been kept in check, that's because traditional retailers are at least worried about the outlier case where someone's willing and obnoxious enough to prove a point, or at least unsure they're at far enough distance for tort and PR purposes. And this is a signal, if a weak signal, for other matters like whether the business would care for liability if their USB cable burns down your house, or you demand a return for the clothing that fell apart seconds after you put it on, or a thousand other minor things.

It's... not clear how long that lasts, if AI-gen is outside of copyright, categorically, but also hard for humans to detect (and filtered for AI-art humans find hard to detect). I was cautiously hopeful that tools like StableDiffusion could end up a helpful tool for artists, but a lot of artists are concerned enough about the concept to be willing to burn down the field and join hands with Disney to do it. I don't think people are going to like what happens when the groups optimized for a copyright-free existence become hard to distinguish from their own sphere, and able to happily intervene within it.

I can't wait for the deep philosophizing about precisely how much 'human' authorship is required for copyright to attach.

Because whatever it is, the current state of AI art lets you sprint right up to that line, stop on a dime before crossing it, and then stick your pinky toe over it if you want.

Seriously. If the human does the basic sketch outline of a given concept and feeds the sketch into the AI with a detailed prompt of what they want that sketch to eventually look like, how much of the authorship is theirs?

Or the reverse. Have the AI produce the basic sketch of the concept and then the artist develops it from there. Or the artist develops a sketch, has the AI turn it into a Paint-by-numbers picture, and the artists, following the AIs instructions, paints in the final details.

Or the AI produces the concept from scratch, but the artist goes in and modifies every part of it in some way such that every pixel of the image has been 'manually' changed, even if the base image is recognizable.

Or do the classic 'cheater' move of having the AI produce something originally, place some paper over the image with a backlight, and trace over it manually and claim the work as your own. Tracing over photographs is generally frowned upon, at least if you're a professional artist, but at least that's actual human hands producing the end result.

The AI can aid the artist to almost any degree in any stage of the process. It's parameters can be adjusted with finely grained particularity to have as much or as little influence as the law claims is required.

It's even crazier for written works. If an AI produces an essay that effectively conveys the ideas the 'writer' has in their head such that they are satisfied with publishing it with minimal edits, does that somehow invalidate the ideas as written? How much editing to make the AI's words 'your' words, especially if the AI's words already convey your thoughts in a perfectly cromulent manner? What if the writer just uses those 'predictive text' programs that lets them write faster by filling in the words it thinks the person wants, but the writer manually approves each one?

(Note, as a matter of pride I would still want to physically type out most of my correspondence, including comments like this. It seems like that is a fair expectation when you communicate with other humans whilst representing yourself as a human presenting their own ideas that you not filter it through a middleman. But again, what does 'filter through a middleman' mean in practice?)

And I'll even agree that it is 'wrong' to represent yourself as having artistic skills if you rely on the AI to actually produce the work, I'll agree that you shouldn't say that an AI work is 'yours,' certainly not without disclosing the fact that AI was involved.

But this particular angle of attack, making AI-produced works exempt from copyright, is not going to stem the tide that's coming and will only produce a lot of serious-sounding but absurd-in-practice rules and enforcement mechanisms that will waste a lot of people's time.

Artists are definitely NOT effectively winning people to their sides by being so whiny about the issue, rather than attempting to suggest reasonable policy prescriptions that might at least be politically viable.

The question is, what is even a reasonable policy prescription here?

Requiring that people hold valid licenses for their entire training sets isn't even enforceable enough to do anything. And letting these things go unhampered means that you have machines that can launder any sort of intellectual property.

I'm not even sure where the law as it stands lands us. The result of that Github Copilot lawsuit is a total mystery to me for instance.

The question is, what is even a reasonable policy prescription here?

If I were suggesting them, on behalf of artists, I might go with laws that specifically outlaw representing work that involved AI models above a certain size at any stage as 'human created.' I would suggest that limitations could be placed on the commercial use of AI art, particularly that used in marketing and production of mass media. A simple way to restrict this could be to render such creations as public domain works instantly.

Maybe require any time a model above a certain size is 'trained' the dataset being used must be registered with [government agency] and artists might have some process by which they can opt out of inclusion in the data.

Would these rules be hard to enforce? Wildly. Would they be relegated to irrelevance as improved models appear? Probably.

But these suggestions are at least isomorphic to existing regulatory regimes and could utilize processes that currently exist.

Would these rules be hard to enforce? Wildly. Would they be relegated to irrelevance as improved models appear? Probably.

Perhaps the human brain - even when there are many of them grouped together and collaborating - are unable to come up with reasonably enforceable regulations on AI-generated images that placate its naysayers, and we'll have to rely on some sort of advanced AI in the future to come up with such regulations. Because, yeah, it already looks like the cat's out of the bag at this point. The models that are out there are already very powerful and can run very quickly on old consumer-level hardware, so even if all development in this were to stop right now, the trouble will remain.

I would suggest that limitations could be placed on the commercial use of AI art, particularly that used in marketing and production of mass media. A simple way to restrict this could be to render such creations as public domain works instantly.

I think this would help to an extent, but just because some piece of image is in the public domain wouldn't prevent a business from using it and from having copyright over the final product. Neither Die Hard nor its soundtrack is in the public domain just because it used clips copied straight from Beethoven's 9th symphony. I expect that assets that really specify the product's brand, like, say, the design of the main character, might be forced to be completely human designed, though, which could help. But then again, perhaps trademark law could come into play to provide legal protections even if copyright were lost.

The models that are out there are already very powerful and can run very quickly on old consumer-level hardware, so even if all development in this were to stop right now, the trouble will remain.

A close analogy is to cryptography, which the government tried at first to regulate as literal weapons, but not only was this a ridiculous position, it was impossible in practice due to the nature of cryptography itself.

And now crypto is ubiquitous and, of course, runs on consumer grade hardware.

Hard to see AI taking a different path, honestly.

just because some piece of image is in the public domain wouldn't prevent a business from using it and from having copyright over the final product.

Well that's what I'm saying, if you use AI work in your commercial product, the law states now that the whole work is public domain.

Thus there is incentive on the creator's part to be very, VERY careful about what they include in their product and fastidious about keeping records to prove each step is non AI-generated. And creates an incentive on others to try and catch them in the act.

Well that's what I'm saying, if you use AI work in your commercial product, the law states now that the whole work is public domain.

Thus there is incentive on the creator's part to be very, VERY careful about what they include in their product and fastidious about keeping records to prove each step is non AI-generated. And creates an incentive on others to try and catch them in the act.

I see, so you mean essentially creating another type of copyright status that's a sort of "infectious public domain," where its mere use in another work "infects" the entirety of the work with "public domain" status. If this were implemented and enforced, it seems like it could work, but my guess is it that it would also effectively decimate the current entertainment industry. Having to fastidiously document every single brush stroke that went into creating every single background prop in a film or every single floor texture in a video game would increase the costs of production of these things massively, to the extent that I think the business case just wouldn't be there anymore for most companies. And I think such level of documentation would be required so as to prevent companies from trivially getting around the regulation with a "don't ask, don't tell" approach.

I suppose there could be multiple tiers of "infectious public domain" for AI generated images where businesses could use AI for some low level things but not others and still retain copyright over the final product so as to not to be so onerous to the production process, but I admit that's getting too deep into the details of things that I'm ignorant of for me to form a meaningful opinion on.

but my guess is it that it would also effectively decimate the current entertainment industry.

Not seeing the downside, personally.

Having to fastidiously document every single brush stroke that went into creating every single background prop in a film or every single floor texture in a video game would increase the costs of production of these things massively, to the extent that I think the business case just wouldn't be there anymore for most companies.

Yeah, but we'll have to do that anyway if our goal is to limit copyright to only human-created works.

I don't know how you solve this issue any other way.

And I think such level of documentation would be required so as to prevent companies from trivially getting around the regulation with a "don't ask, don't tell" approach.

Oh yes, there would be people who consider it worth the risk. Especially as it becomes way, way harder to tell AI art from human.

A simple one would be to just pay a given artist to sign off on AI art as if he was the creator, and who is willing to lie under oath and investigation that he personally created all of those works.

I suppose there could be multiple tiers of "infectious public domain" for AI generated images where businesses could use AI for some low level things but not others and still retain copyright over the final product so as to not to be so onerous to the production process,

Yeah concept art, storyboarding, rough drafts, all things that don't make it into the final, saleable product could probably escape scrutiny.

The way I'm conceiving this is that "if you publish a work for purpose of sale to the public, it must not contain AI generated content."

but my guess is it that it would also effectively decimate the current entertainment industry.

Not seeing the downside, personally.

Well, the issue is that the entire purpose of such regulations is to appease the people who depend on these industries for their income. If the regulations just destroy their income in a different way - instead of replacing 10 artists with 1 artist who uses AI to be 10x as productive, it's just replacing 10 companies that hire artists with just 1 company that hire artists - it seems like it wouldn't appease those people. The ultimate point of any law surrounding copyright or intellectual property in general is to protect incomes, after all.

Yeah concept art, storyboarding, rough drafts, all things that don't make it into the final, saleable product could probably escape scrutiny.

The way I'm conceiving this is that "if you publish a work for purpose of sale to the public, it must not contain AI generated content."

This seems workable, but also kind of a nightmare scenario for the people who would want these regulations. In this scenario, all the rote work that goes into producing the textures you actually see on the screen must be painstakingly hand-painted, but all the creative work that went into creating the concepts behind could have AI aid, thus reducing the number of the less rote, more creative artistic jobs. Perhaps better than AI being used in every step of the process at least, I suppose, and perhaps only a little worse than how it is now, since from what I understand, most art jobs in the industry tend to be rote work anyway.

Well that's what I'm saying, if you use AI work in your commercial product, the law states now that the whole work is public domain.

Do you have a citation for this? That sounds extremely unlikely to me and would completely upend my understanding of copyright law. Which isn't to say you're wrong as I'm not well versed in copyright law, but a lot of people I work with have been including AI-generated material in their commercial products for a while now and I'd be shocked if their legal teams okayed that if it made the whole work public domain.

EDIT: Nevermind, I missed that this was a hypothetical.

Yeah, I'm proposing a policy solution that might be politically viable, not one that currently exists.