Which tools in Photoshop can we use without losing copyright to our images?

[DaBee]

Which photshop tools can we use and retain full rights to our images? which tools are machine learning and using pixels from my image ? which are AI and use pixels it generated?

If a tool is using pixels from my images to generate the requseted area ( when tidying up an edge or extending my back ground) as in content aware fill it is my work. If it uses the crop extend and fill still my work or not? is that content aware fill or AI at work?  what about Gaussian blur, hue saturation etc ?  Its clear AI when using stock to generate fill thats my creativiity but  not my pixels so not my copyright? AI shared pixels my creativity? shared copyright? do i copyright the promt?

I would like to know if the tools I use in Photoshop are now taking my image and creating somthing I cant claim is my own? and which are  giving me tools to retouch re-position edit and improve? Ive always thought  of photoshop as a way to develop my photographs and improve them. Inow shoot knowing i will .. just whip that out in photshop etc.. Now I wonder is the new remove tool AI or Machine learning if i remove a person a tree  a piece of the image i dont want ?? is it replaceing it with my pixels or is it deciding to use AI?

I need to know which tool is using which system so i can choose what to do when editing my photos and know there usage prior to completing the edit ? not what i do now now i make my photo the best it can be based on my mood and creativity on the day....  I sell if i want i keep it on disk if i want  i dont have to con sider do i own it when some one asks to buy it I know.  Im making hundreds of assests for a guitar teacher based on one or two origional photos... they have to be copyrighted. Do I  have to do everything maualy to be sure? or stop using photo shop for a few months till is clear?  Any body know the answer already?

[D Fosse]

In principle, it's pretty simple: Is there any genuine human creativity going on in the image?

If the image is mainly AI-generated, by typing in a prompt, there isn't. So you can't claim copyright. That seems to be the general legal consensus. It doesn't qualify as intellectual property, so copyright simply doesn't apply.

In other words, it's not about the tools used. It's about the result.

Everywhere else nowadays, including here in the forum, you see a lot of complaining about restrictions on AI hindering people's "creativity". What creativity? Is pushing a button "creative"?

I'm sure you can use AI to create genuine art, and I'm sure we will soon start seeing professional artists using it for their own purposes. The question is whether it is used within a creative framework. The result, not the tools.

It's basically the same discussion we had twenty years ago with music and sampling. If done intelligently, it can be a work of art in its own right. If done mindlessly, it's not. In most cases we can easily separate the two.

[DaBee]

oh I have no doubt it will work! The  creativity to use the AI to make what we have in our minds is indisputable, its amazing the question comes more about the legal use. If i make a photo using Ai  i created the concept the art work so to speak but the AI used input from a variety of sources just like my brain does it creates too so the use of data source comes into the equation. My data source is my lifes experiance all ive seen and done that give me my direction choices , along with a few happy accidents which i choose to keep or loose. Ai is provided with a data source  in adobes case its stock photos and licence free photos that feeds the AI. so if i generate a background the AI sees my trees,sky, ocean light direction what ever and matches it, it uses sources other than whats availablein the image it has brought something new to the image thats great, time saving, amazing increadable all of that,  however it is no longer my creation it is a joint creation. If i use content aware fill it brings my pixels to bear on the image, same  if I hand cut copy paste its still my creation. I need to know which tools I want to pick up and use so i dont infringe copywrite or accidently make a claim that is not quite accurate. All tools are good tools Its how we use them that matters the creativity is not in question, just the law. I just took 7 days to photograph cut out, colour precisely postion and execute a piece that will be used comercialy. if i then geratativly fill the background with a white wall ? i would say the creativity is mine but generative fill is not my work not my pixels i would be afraid to use it. ...... but happy to open a new doccument fill with white?  Im worried about the way we decide what is creative , I think the AI can definitley create.

[c.pfaffenbichler]

Well, Generative Fill is still in beta and I expect Adobe (respectively its legal team) to figure s…t out and make their position known before/when it actually gets released. 

And that position can probably be taken fairly seriously. 

What I wonder is whether the people that use AI to upsample an image, for example, are aware that the result is not really a photograph anymore but essentially artwork? 

[D Fosse]

I need to know which tools I want to pick up and use so i dont infringe copywrite or accidently make a claim that is not quite accurate

By @DaBee

You misunderstand my point. It doesn't matter what tools you use. You don't "infringe" any copyright, if it's AI-generated there is no copyright. It doesn't apply.

What matters is whether you are the creator of the work as a whole, not an algorithm.

Legally and ethically this is unproblematic. The distinction isn't difficult to make. I've seen how generative fill works, one of my coworkers is giddy with it and can't stop demonstrating. Once you put in that prompt, you have no idea what comes back. It's jack in the box. There is absolutely no "creativity" there in itself. It's random.

But that doesn't stop you from using it in a creative way, by conceptualising it into a work in a bigger context. See the difference? It's pretty obvious to me.

Let me put it another way: do you feel very creative by clicking the brush icon in the Photoshop toolbar? Of course you don't. You have to make something with the brush first. Same thing.

[DaBee]

I agree to an extent, an artist will create using whatever tools they choose,  absolutly! Camera and film  to digital editing is a better analogy I think than the Music one. The differance is i can choose to use film , or i can choose digital tools,  I hope Adobe dosent change the tools in such a way that I cant choose to avoid AI for projects i want to copyrite  I would like the choice to remain mine. If i use an AI generated image it cant be copyrighted at the moment the artwork cant be used or sold commercialy. If i generate an item and add it to my image I cant use it comercialy yet. if extend my crop change the size i dont want the image to become unviable commercialy becaus photoshop popped a new system in its last update i want to choose for the project i am working on.

[c.pfaffenbichler]

what about Gaussian blur, hue saturation etc ?

I fail to see a connection to AI so what makes you even ask about those functions? 

[DaBee]

these tools and most of the others use machine learning not AI , im not sure if the new remove tool which is also amazing is Machine learning or AI. 

If  D. Fosse is correct  then it dosent mater perhaps?  Untill Generative fill comes out of beta and becomes high resolution.

[c.pfaffenbichler]

these tools and most of the others use machine learning not AI , im not sure if the new remove tool which is also amazing is Machine learning or AI. 

Filters like Gaussian Blur and Adjustments like Hue/Saturation do not employ machine learning. 

[davescm]

@D Fosse said '......Is there any genuine human creativity going on in the image?'

Exactly this. It was tested in a US court which allowed copyright on the text and on the layout but not on the AI generated images. Critically, to quote the article linked below, the issue was that the 'specific output cannot be predicted by users'. That falls right in line with D Fosse's comments above.

https://www.reuters.com/legal/ai-created-images-lose-us-copyrights-test-new-technology-2023-02-22/

If AI generated elements had formed part of a larger image rather than being the main element, and had been further manipulated under direct human control, then maybe the court would have come to a different conclusion on the images (I am not a lawyer).

For the time being of course Adobe's AI generated images cannot be used for commercial use (that is in the terms of the beta) so until full release the point on AI generated elements is moot.

Dave

[D Fosse]

It will be very interesting to watch the development in the art world. Working at an art museum I'm right in the middle of that, and offhand I can think of several contemporary artists who are probably itching to get into this 😉

One thing is certain: they will not simply "push a button". They will put it into contexts none of us had ever thought of 😉

[davescm]

Here is an example of an image in which I used generative AI fill, on a semi-opaque selection from my own windmill image, to generate layers of textures. I then combined these layers usings masks and blend modes and traditional filters. At present I could not use this image commercially as Adobe Generative AI stipluates no commercial use. However, I believe that once AI output is cleared for use, then an image such as this would be OK and I would have copyright on the finished image, as my manual input was extensive. So not much different to the position if I had used licensed texture images.  Again though, I am not a lawyer.

....and another - this one using 7 generated texture layers - each based on a partial transparent selection from my original image then blended with that original)

:

Dave

[timc34852236]

Hi Dave. I'm interested to know whether you'll somehow declare your use of AI technology in the construction of these images if you choose to display or sell them?

[davescm]

These were non-commercial but to answer your question generally. For display, it would depend on the specific terms of the display. For commercial use then yes, of course I would declare it. It would also be in the content credentials meta data with which I have no issue.

Dave

[timc34852236]

That's good to know that the use of it is recorded somewhere. Would a non-technical person be able to see that though? Are you meaning the metadata you input or is there some structural metadata that viewers can access and can't be stripped off the image? I'm interested in transparency Dave, that's my issue with AI.

[davescm]

You might want to read this:

https://helpx.adobe.com/uk/creative-cloud/help/content-credentials.html

Dave

[timc34852236]

That's great, thanks for that info and my trust in Adobe has just gone up markedly. It's something to add to the process but one I think will be important. Shame it's down to photographers to justify their work but we're now in a untrusting world. Personally I'll be avoiding AI as best I can as I can't see what I offers my photography. For people that are interested in manipulating images I guess it's party time.Sent from my Galaxy

[davescm]

Part of the issue in these discussions is applying the AI label to what are a wide range of tools. As a photographer you may want to avoid tools which use generative AI to invent picture elements, an example would be generative fill, where it would be hard to argue you had full control over the content being added.

However, not all AI driven tools do that. If a new sharpening algorithm was to be introduced based on some AI learning as to where and how much sharpening should be applied in different parts of an image, based on the content of that image, I am sure many (including me) would try it and potentially welcome it. Another example would be a hair mask that used AI learning to separate hair from background, I would also welcome that. In neither of those two examples is AI generating pixels or the photographer losing control over what is in the image.

Dave

[timc34852236]

I don't want to come over as a purist but I'm not in need of a better sharpening tool - Canon have provided some very good gear to help me with that, nor do I want to separate someone's hair from the background I've chosen to photograph them in front of. I use Photoshop to present the pictures I shoot pretty much as I saw them. For that I have been happy with the software to date and I don't need much else. These new toys are great but I, like DaBee I suspect, don't want them imposed on me.Sent from my Galaxy

[davescm]

Composition, masking and sharpening tools are nothing new, nor are they toys, they are an integral part of the production process when going to print. Composition took place in darkrooms long before Photoshop, yes I am old enough to have used darkrooms and medium format equipment  🙂  Likewise sharpening, unsharp mask was a film technique. New digital tools offer us more control, AI driven tools potentially offer further options.  How, and whether, we use such options is down to the individuals choice or the workflow in which they form a part.

Dave

[Conrad_C · Accepted solution]

For the time being of course Adobe's AI generated images cannot be used for commercial use (that is in the terms of the beta) so until full release the point on AI generated elements is moot.

By @davescm

I think that is the guideline that you might be looking for, @DaBee: If you want to know which tools are going to be legally “commercial safe” then maybe the rule is to use only features that are in the public production release of Photoshop. Those are already in use by thousands of businesses. The features to avoid are the ones in the public beta, like Generative Fill, which are still labeled “not for commercial use.” It is easy to avoid those, because the public beta version is not what is normally installed…you have to intentionally go get it. If you use the normally available version, it should be no problem to use any of the features. Generative Fill is getting a massive amount of publicity, so people are talking about it as if everyone is using it, but Generative Fill is really only available for beta testing right now. Stick to the regular production release and you should have no problems with copyright, because of the ways Adobe sources the images it uses for machine learning (see next paragraph).

You are not alone in these concerns, and so there are much larger entities who need this question resolved just as much as you do: For Adobe to be a successful business, their customers, including large businesses and governments, need to be able to use Adobe tools without fear of legal problems with copyrights and such. To avoid copyright problems with their machine learning, Adobe says it does not use the kind of “no rules” training that scoops up any image on the Internet regardless of rights. Instead, they say they train machine learning in a way that’s “safe for commercial use” by using images they already have usage rights for, like Adobe Stock, or images where the copyrights already expired. Another example of “safe for commercial use” is this month’s announcement that Adobe will “offer financial indemnity for copyright challenges involving content made with the tools.” (Link goes to a Reuters news story) Although that is only available for large business customers, it does indicate how “safe” they think their machine learning will be. The story says:

"We financially are standing behind all of the content that is produced by Firefly for use either internally or externally by our customers," Ashley Still, senior vice president of digital media at Adobe, told Reuters.

It’s a good question though. I could only write that reply after doing some web searches on why we should think Adobe machine learning is OK to use. Before that, I was not aware of the indemnification announcement.

I am not a lawyer, but it seems like, assuming Adobe is doing this properly, if you create a work that you want to copyright, using a machine learning feature trained on a “commercially safe” image set, that should work as well as copyrighting a design where you used typefaces and legal stock art that other people created. But to be sure it will work under the laws of your country, it would be best to consult a copyright attorney.

[DaBee]

Hi Conrad , yes that is the question to work knowing what is legaly safe  and what is not with out interupting the work flow.  Thank you for taking the time and sharing you findings. Its good to know Adobe is being responsible with sourcing of data and its offer of financial indemnity, we will see i guess as the cases get tested around the world. While the AI is in beta and the artist is paid for their stock thats business as usual.

I would like to know going forward from Adobe what I am using when I create,  be able to properly asign the correct atribution to any thing I add to my own work quickly and easily. To know that im usings pixels i created not adding new ones in frome some place else.

With the tool development I hope we will be able to choose our own preferances if I  change my crop in photoshop, fill it with white,  take out a tourist or 2  add or copy the cat from over there to over here etc.. that I  dont run in to copy right issues because of the tools i used. I would like my work space to be the way I set it and not adapt to what it thinks I want, and of course Know wht is leagaly commercialy safe see if i can still st up some practical automation in the work flow. I need choice and ease of use , being able to correct the automatic atributions that i think will come is aslso vital.

Also based on internet searches the on differance  between the machine learning and the AI, is that people write source codes and improve the systems and tools based on the machine returning data and the humans responding then designing changes and improvements. In the Case of the AI it also uses the machine learning+ to learn and is capable of performing tasks that typicaly require human input, it can take decisions and act on them make changes and improvements. It can write its own code.  Thats a big deal  and its already here to stay I think. 

[timc34852236]

I'm in total agreement with DaBee here. I want to know absolutely which tools are just dealing with my work. I don't want input from external imagery as I often work in news/features/documentary. Would I be correct in assuming there are pieces of AI already incorporated into Photoshop? I wouldn't be surprised but the danger to the traditional photographer (as opposed to the artist or creator-photographer who may be using Photoshop as an artistic tool) is Generative AI I think? I'd like to know from Adobe how they're going to ensure my pixels aren't taken and used by GenAI tools in Photoshop in future. Do photographers have any say in this, or will editorial photographers of the future have to declare their work has not been put through Adobe Photoshop?

[DaBee]

Hi Tim, Yes I agree with your points,  how do I develop or enhance my photos without steping into the relm of uncertainty today? I belive we need to have  the freedom to  to choose how we want to work on any given task. To be able to switch and use the appropriate tools for our chosen tasks and to atribute it accordingly is important I feel, for both my work driven and my personal projects. If I work on my images I want full creative control of the result regardless. I dont like working on my images and find I have stop to think how do I do this now? Do I use the pen tool because i dont know if the wonderful "remove background" results in metedata with adobe credentials does it belong to me or to the machine. I dont want to think of anything along those lines  want to enjoy editing my photo's or creating with AI which ever.

Another issue is How do I save my stuff now? creative cloud wants me to keep copies in the cloud and add credentials Preferences > History & Content Credentials  do I have to buy more space for that? If i dont do that is my image unprotected... opensource? unspecified? eventualy unable to share or upload or provide to clients.... dont get me wrong im in favour of  and  love some of the AI toy tips tricks and workflows ...Amazing and here to stay. I aim to get good at it too.... but i want to choose and create  with out having to take a degree in copyright law around the world or coding or.......copy promts and styles and become gerneric and ultimately bord fed up and frustated. Because im working out the program usage rather than getting my edits done or creating . Do I change to other editing programs and be limited by sofware that cant do what photoshop could do ...prior to  ai.  The machine rolls on and i fear i will miss out on the fun because i will have to find an alternative if i cant solve it

[DaBee]

Camera Raw has now been changed over night,  AI added.  So now we have the same issue here. I had the auto updates switched off, some how they back on when i checked and everything has updated and over written ... (possibly my mistake ...) I cant develop my images out of Camera with  this app any more with out losing the rights to my own images it seems ? Adobe metadata attaches follows my editing scrapes the data and slows me down, its invasive and unpleasent to work these days, being monitered and keystroked by an app!  I seem to be spending lots of time chasing the spyware and isolating the bugs instead of developing, retouching and playing with my new and evermore expensive toys.  My calm happy space is now  horrible.  Adobe is asserting control over my work with out my permission. Not enough infomation about how to personlise and control my preferances instead there are lots of  big noisy glossy selling pitches from excited creators having a lovely time.

I want to Know which tools to use ( AI Vs No AI) and what it means if I CHOOSE to use them so I can CHOOSE  what and how I want to include in my work.  

Perhaps its Time to look for alternatives to Adobe, as my 2012 perpetual version is well and truly defunct and its promissed cc downloadble off line version with updates is not being honoured ( i was promised if I make the switch I would always be able to opt out before it became an online only service)   It would have been cs6 at the time i tried to opt out the answer was "sorry not possible" so I cant even go back to basics with Adobe.    Can CS6 still be purchased and used?  Anyone tried apps that work well out side of the Adobe eco system?  which apps do you all use  sucessfuly? instead? where can get the same quality?  a quick learning curve? no viruses ? I need photoshop, bridge, camera raw type services as  a minimum to process out of camera photos.     Instead I will inevitabily learn about the updates as best I can probably end up using it to get the job done lovely and quick touch up manualy etc... forget to cancel on the right day and be stuck in Adobe prison for another year instead of feeling excited and having fun with it im frustrated and feeling negative.... not a good frame of mind for working and so disappointing freedom of choice and a good working knowledge base  is key !  Glossy sales pitches are so ...... time consuming.... and dare i say a little boring.