this post was submitted on 26 Jan 2024
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The point is to prove that copyrighted material has been used as training data. As a reference.
If a human being gets asked to draw the joker, gets a still from the film, then copies it to the best of their ability. They can't sell that image. Technically speaking they've broken the law already by making a copy. Lots of fan art is illegal, it's just not worth going after (unless you're Disney or Nintendo).
As a subscription service that's what AI is doing. Selling the output.
Held to the same standards as a human artist, this is illegal.
If AI is allowed to copy art under copyright, there's no reason a human shouldn't be allowed to do the same thing.
Proving the reference is all important.
If an AI or human only ever saw public domain artwork and was asked to draw the joker, they might come up with a similar character. But it would be their own creation. There are copyright cases that hinge on proving the reference material. (See Blurred Lines by Robin Thick)
The New York Times is proving that AI is referencing an image under copyright because it comes out precisely the same. There are no significant changes at all.
In fact even if you come up with a character with no references. If it's identical to a pre-existing character the first creator gets to hold copyright on it.
This is undefendable.
Even if that AI is a black box we can't see inside. That black box is definitely breaking the law. There's just a different way of proving it when the black box is a brain and when the black box is an AI.
But that's just a lie? You may draw from copyright material. Nobody can stop you from drawing anything. Thankfully.
Nobody can stop you.
But because our copyright laws are so overreaching you probably are breaching copyright.
It's just not worth a company suing you for the financial "damages" they've "suffered" because you drew a character instead of buying a copy from them.
Certain exceptions exist, not least "De Minimus" and education.
You can argue that you're learning to draw. Then put that drawing in a drawer and probably fine.
But's pretty clear cut in law that putting it even on your own wall is a copyright breach if you could have bought it as a poster.
The world doesn't work that way but suddenly AI doing what an individual does thousands of times, means thousands times the potential damage.
Just as if you loaded up a printing press.
De Minimus no longer applies and the actual laws will get tested in court.
Even though this isn't like a press in that each image can be different, thousands of different images breaking copyright aren't much different to printing thousands of the same image.