So... AI copyright free, yes or no?

[Arenlion]

As of September 2023, after many updates, where do we stand with the copyright?

Is the entire AI section still in beta? I can see the labels within the neural filters, but where does the generative fill AI stand?

Is there, currently, a difference in copyright between generative expand or minor generative fill fixes, and full generated AI images?

Should it still be copyright locked, is there a timeline for its release?

Thanks,

Confused Person

[davescm · Accepted solution]

I am not a lawyer and do not work for Adobe so the following views are my own.

I doubt you will see a straight yes or no to this question at present. Copyright and generative AI is a bit of a minefield at present with various cases progressed through the courts challenging ownership, and even the ability to copyright images that were generated by typing in text prompts. Example in this article: https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/

I don't know what you mean by copyright locked. Commercial use by generative AI in beta software was, and still is prohibited. Commercial use by gen AI in the released software is 'designed to be safe for commercial use' as stated here : https://helpx.adobe.com/photoshop/using/whats-new/2024.html#gen-ai-photoshop

Adobe's terms, referring to copyright,  are here (revised in September)
https://www.adobe.com/legal/licenses-terms/adobe-gen-ai-user-guidelines.html

https://www.adobe.com/content/dam/cc/en/legal/servicetou/Adobe-Generative-AI-Additional-Terms_en_US_...

If you need specific advice on generative AI and copyright then you should talk to a copyright lawyer.

Dave

[Arenlion]

Oh yes I know, it's the wild wild west right now, precisely why I came here to try and understand where we stand with Adobe.

Commercial use by generative AI in beta software was, and still is prohibited. Commercial use by gen AI in the released software is 'designed to be safe for commercial use' as stated here : https://helpx.adobe.com/photoshop/using/whats-new/2024.html#gen-ai-photoshop

Thank you, this is what I was looking for! Along with the first article as well.

Really not sure how I missed the Adobe one there; I had only seen the talks of the many court cases.

[Leslie Moak Murray]

As an artist I can  tell you I am the copyright holder and NOBODY ELSE.  I took the proactive step of not giving permission for my work to be used in AI with Adobe, but the other day I got a payment for it. I am beyond annoyed. I say make your own images! Phooey. There I feel better now. But not really.

-edit typo

[davescm]

'As an artist I can tell you I am the copyright holder and NOBODY ELSE.'

Just for clarity of other readers (I'm sure you know this Leslie) as the artist you do indeed hold the copyright to your images, but if those images were made with generative AI (again I know that you create yours yourself Leslie) then you may not, according to the US legal cases mentioned above. What a minefield!

'.........the other day I got a payment for it'

At least Adobe made a payment, some AI generators have been scraping the internet for images to learn from with no such payments forthcoming.

Dave

[Leslie Moak Murray]

As you said, it's indeed a minefield at the moment. But no matter what any judge might say, the original creator is the rightful owner of the intellectual property (as if ethics atter anymore).  As to those who use this software and sell it and bill themselves as "digital artists," you are not an artist. You're a typist.

-edit typo

[D Fosse]

you are not an artist. You're a typist.

By @Leslie Moak Murray

Ah, yes, that's just wonderfully put. That's what I've been thinking the whole time, I just couldn't find the right words.

I could never understand why anyone could use the words "generative fill" and "creative" in the same sentence. I tried it two or three times, and I can tell you, I didn't feel very creative afterwards...

[davescm]

'...you are not an artist you are a typist... '

I do like that description and agree with it 100%.

There is though a problem with the statement 'the original creator is the rightful owner.....' when applied to generative AI. Contrary to some popular belief, these programmes do not spit out composites of other artwork. They train on patterns in images that are associated with keywords. So when prompted with a word such as leopard they generate a pattern of pixels that resembles what the algorithm has learned about images containing leopards. It could be argued that this is little different to the way we ourselves learn the shapes of objects. If I now draw a leopard using a paper and pencil, the copyright is mine not the owners of all of the leopard images I have looked at over my years of learning to draw and learning about leopards.

So the original creator in this context is the algorithm itself, not the person prompting it, or the thousands of image owners on whose images the algorithm was trained.

A more worrying, in my view, trend is prompting for artwork in the style of xxxxxxx.  That is much closer to plagiarism, as it is asking for the software to emulate the output of a human artist. 

Like we said earlier - a minefield.

Dave

[George22607472jt9z]

Your assessment of course technically incorrect, or rather incomplete. It's akin to saying an artist is just a 'paintbrush-ist' or a 'pencil-ist' (sic). An artist is not an artist without ideas and vision, which coincidentally are expressed with words. But of course your rejection of tools and denigration of those who choose to use the tools is your intended message. See how I am creatively able to unpack your comment with words?

[D Fosse]

@George22607472jt9z 

I stand by what I said. A paintbrush doesn't spontaneously start painting a picture when you push a button. That's the difference, and it's a pretty substantial one.

The general consensus in the legal community reflects this. Copyright does not apply for ai-generated content. For copyright to apply, it has to be created by a human.

The gray zone is how ai has been used. Pushing a button or typing a prompt doesn't qualify in itself, that doesn't require any artistic intention. But if ai has been used as small building blocks to support an overriding larger idea - then the paintbrush analogy begins to become relevant.

[George22607472jt9z]

Craft does not equal art, but art is made through craftsmanship. AI images also do not create themselves via the push of a button, as you state. AI Images are crafted via the text that creates the image and the algorithmic biases that are chosen and intended. There are varying degrees of this of course, depending on the technology you are using. Not suggesting that an AI image is automatically art (and therefore copyright worthy). To disregard the value of an image because it is generated through AI seems shortsighted. The value should be derived through an assessment of intention. And I chose to acknowledge there is artistic intention in some AI imagery, and I stand by my assertion that art comes from the combination of idea, intent and craft. IMO, of these three parameters, idea and intent are the most important, are they not?

I understand the copyright. I personally don't rely on legal experts to tell me what the value of a created image is. Just as an image that has been produced is not always art, a copyright does designate an image to be art. The legal issues currently surrounding generative AI are complex. I do believe artists should be compensated for artistic works derived from their own artistic, copyrighted work, and Adobe is doing the responsible thing. I do have sympathy for artists who feel their work has been stolen without permission, and that the big tech players (Midjourney, Stable Diffusion, OpenAI) have used copyrighted data without the permission of the author, as the original Lion data set was not intended for commercial use. But the tech is here and it's not really going to go away no matter how much anyone might want it to.

[George22607472jt9z]

A couple unintended errors in my reply. For clarity, corrections:
"And I choose to acknowledge"
"a copyright does not designate an image to be art"

[D Fosse]

@George22607472jt9z 

That's what I said. If you use ai as building blocks to support a bigger overriding idea, then it's your own intellectual work. Typing in a prompt is not your own work. It's made by a machine.

[davescm]

Typing in a series of prompts is more akin to the person commissioning an image/piece of art. The creator (I purposely avoid 'artist' here), either human or AI, then creates the image based on that brief. Copyright generally belongs to the creator, hence the copyright issue when the creator is AI.

Dave

[D Fosse]

Right. The last time I went to a seminar on copyright law, we were continuously impressed with how it's all ultimately based on common sense. If something feels reasonable, it's probably what the law intended.

As for ai, common sense dictates that it cannot be copyrighted in itself. Typing a prompt is not intellectual property. That's just common sense, a priori. It takes a little more effort than that.

But it can be used to create something bigger. That something bigger can have a life of its own and be considered intellectual property - even if all its constituent parts were made with an evil alien intelligence...sorry, ai.

So theoretically - theoretically! - you could have an image that is 100% ai-generated but still be considered a valid piece of art. Of course, that's not how most people use it. They push the button, done, where do I put the signature.

In practical terms, it's a bit like sampling in music. You can do it, but you can't go overboard. There has to be a bigger context.

I think a simple analogy works well here:

[c.pfaffenbichler]

As an artist I can  tell you I am the copyright holder and NOBODY ELSE.  I took the proactive step of not giving permission for my work to be used in AI with Adobe, but the other day I got a payment for it. I am beyond annoyed. I say make your own images! Phooey. There I feel better now. But not really.

-edit typo

By @Leslie Moak Murray

When did you opt out of your Adobe Stock images being used as training material? 

Could there have been a period of time when you hadn’t opted out yet and Adobe was already pursuing the AI-approach? 

Otherwise I wonder if the payment might have been a mistake (those seem to happen) and I am not exactly sure who to address about this, a bug report maybe … 

[Leslie Moak Murray]

I don't remember the date, it was earlier this year. I saw somewhere, might have been on Discord, that they were paying people to use their work for Firefly training or something, but that we could opt out. I went to my account that day and found the opt-out box and checked it.

I get it, that it's only for training etc but as you can see by this thread alone, hardly anyone really understands all the ramifications of any of this. In my experience,  a shocking number of people out there have zero concept of intellectual property ("I found it on Google so it's free!"). I have seen so many people on LinkedIn and elsewhere proudly showing the "paintings" or the "digital art" they have mashed together in Midjourney or others, all consisting of art they did not draw themselves, and selling it on their websites and calling themselves "Digital Artists." It makes me want to run all around the house slamming doors.

I've seen people on LinkedIn whose title is "AI Conjurer" or "AI Wizard" etc. making posts about their magnificent gift for typing prompts, offering to teach it and coach you in it,  as if typing prompts confers some kind of ownership of the IP.  There are You Tubers giving tutorials on prompts and proudly showing their results, which are painted images, some of them really good, but of animals or people that someone else painted or drew. They're actually trying to attach talent to the act of typing prompts. Nitwits. And the speed with which this has all sprung up!

I read somewhere that a judge has declared images made with AI to be un-copyrightable.

-edit typo

[D Fosse]

I read somewhere that a judge has declared images made with AI to be un-copyrightable.

By @Leslie Moak Murray

Correct. There have already been court cases with that outcome, but it also seems to be the general consensus in the whole legal community, from what I can tell. There has to be an actual human there for copyright to be applicable. Seems obvious, but...

If you really want to slam doors, take a look at the "violate guidelines"-thread, which probably has about 100 000 posts by now. The gist of it is that Adobe censors artistic expression and creativity. I made one post there and quickly concluded it was a spider's nest. I'm not going down there again.

[c.pfaffenbichler]

If you really want to slam doors, take a look at the "violate guidelines"-thread, which probably has about 100 000 posts by now.

Dang, that thread is long … 

[D Fosse]

Copyright has nothing to do with Adobe or beta vs. production.

The short answer:

https://www.theverge.com/2023/8/19/23838458/ai-generated-art-no-copyright-district-court 

The gray zones:

https://builtin.com/artificial-intelligence/ai-copyright 

[George22607472jt9z]

Thanks for this. This excerpt was interesting:

The U.S. Copyright Office’s stance on excluding machines from being considered authors could throw a wrench in the Stable Diffusion lawsuit and many others, according to Rob Heverly, an associate professor at Albany Law School who specializes in the intersection of technology and law.

“In order for there to be infringement, there has to be an author. So, if there isn’t an author, I don’t know that there can be infringement,” Heverly told Built In. “If we’re not going to hold the technology maker liable for the technology itself, then the creator of the output is the AI. But we’ve already said they’re not an author. So if they’re not an author then they can’t create an infringing work.”

!