MDI Mainer

One of the numerous issues presented by the advent of AI is the application of copyright law to a image which has been expanded using Adobe’s beta version of Generative Fill in Photoshop. This new tool allows a user to expand a photo beyond its original borders.

Since under existing and well-settled copyright law protection is afforded only to original works produced by a human author or creator, it seems clear that the AI generated portion of the expanded image cannot be protected.

What is somewhat less clear is whether the resulting image, taken as a whole, is a such new work that there has been no violation of the copyright in the original image. If that were to be the case, then the photographer who took the original image would have no recourse against the subsequent incorporation of his or her image in the expanded work.

The June issue of the e-magazine PetaPixel has an interesting article which explores this issue, and included some intriguing examples of expanded works.

HRoss Loc: Longmont, CO

Interesting, thanks.

Curmudgeon Loc: SE Arizona

Interesting issue for professional photographers. I consider all the pictures I post as Public Domain it will obviously have no effect on me. I will watch with unconcealed glee as this works its self out

amfoto1 Loc: San Jose, Calif. USA

Even the copyright office is confused!

https://petapixel.com/2022/09/27/ai-generated-artwork-is-copyrighted-for-the-first-time/
https://petapixel.com/2022/12/13/ai-image-generators-are-a-new-frontier-of-copyright-confusion/
https://petapixel.com/2023/01/13/ai-machines-are-entitled-to-copyight-man-takes-his-case-to-federal-court/
https://petapixel.com/2023/03/16/ai-generated-image-from-text-is-not-human-authorship-says-us-copyright-office/
https://petapixel.com/2023/02/09/u-s-copyright-office-tells-judge-that-ai-artwork-isnt-protectable/
https://petapixel.com/2023/02/23/first-ever-copyrighted-ai-generated-images-lose-u-s-copyright-protection/

In particular, note the first and last of those links, which deal with the same case.

bsprague Loc: Lacey, WA, USA

Me too.

terryMc Loc: Arizona's White Mountains

This is all very interesting reading, but my question is: How does any photographer know that his/her work has been used to train AI?

I have used generative fill for lots of things like expanding a background or adding an arm or legs to an existing original image, and the AI mimics the image in an incredible fashion, even adding accurate shadows where they're supposed to be. Rocks in a landscape are expanded in a believable fashion, but the actual configuration does not exist in life, so it cannot be just copying a photo, it is drawing new content. How does a photographer claim that his copyright has been violated when that generated content cannot be traced back to any single image? It would be like me painting a sunset from memory and every photographer or painter who ever recorded a sunset suing me for copyright violation.

bsprague Loc: Lacey, WA, USA

"How does any photographer know that his/her work has been used to train AI?"

For now, new images from Firefly and filling in bricks in Photoshop seem different. One uses existing photos, the other does not.

Right now, the Adobe Firefly app watermarks the image. It is in Beta. As it rolls out to the real world app, Adobe says that any images used will come from Adobe Stock's millions of images and the photographer will be credited and compensated.

It will be interesting to see how it really works.

MDI Mainer

Here is the PetaPixel link for further reading:

https://petapixel.com/2023/06/01/so-who-owns-a-photo-expanded-by-adobe-generative-fill/

I have to credit Richard Bernabe, whose Creative Vision newsletter alerted me to the article.

https://richardbernabe.com/subscribe/

Capn_Dave

Not this is interesting? Can you copyright AI at all?

jerryc41 Loc: Catskill Mts of NY

Yes, another legal nightmare presented by technology. The laws can't keep up with science.

MDI Mainer

No, Written works as well as images, generated with AI software, cannot be protected by copyright. Under existing law protection can only be afforded to works created by humans.

E.L.. Shapiro Loc: Ottawa, Ontario Canada

I limit my Do-It-Yourself activities to handyman tasks at my home and studio. Surgery, Tax Accounting, Dentistry, Vetinary services for my cat and critical LEAGAL matters go to the experts.

Yes, there are new technologies that may impede your copyright protection. It used to be that dishonest clients or who knows who, could pop your work in a Xerox machine and use or sell it illegitimately. Nowadays, anything you put online becomes fair game for the poachers. How can you prevent somebody on another continent from messing with your images? Well, don't put important stuff online!

So now the Boggyman is AI. As if someday soon the robots will kidnap photographers, scan them in their 3-D printers, and replicate them so they don't need to hire and pay them anymore!

So, here is the drill. If you are concerned about the unauthorized use of your imges by clients, software providers, or other outsourced service providers that you use in the production of your work to the degree that these activities will affect your income, reputation, business, integrity of your art or product, you'll have to consult a lawyer who is an expert in copyright law and find out how to prevent any kind of pirating, theft, plagiarism, or whatever perils you can think of, of any of your images, in whole or in part.

A lawyer can advise you and help you include clauses in your contracts with clients to address these issues. You can find out IF various "cloud" or storage services have the right to use or extract any part of your images. There could be "small print" in their paperwork or online permission to allow them to tamper with your stuff.

All of this is important IF you sell your work on a commercial basis to clients or as fine art, and if this work represents a
significant percentage of your income. Legal fees can be expensive, but not as costly as bringing a lawsuit against a violator, going to court, and sustaining all the aggravation. If you do not take preventative measures, the eventual and cumulative loss of income will outweigh the cost of sound legal advice.

If, however, you do not sell your work, in any manner speaking, and all that gets injured is your ego, all of the above is moot- and in the venerable words of Alfred E. Newman, "Waht Me Worry"!

Ed Shapiro. Commercial & Portrait Photographer. Ottawa, Ontario Canada

SalvageDiver Loc: Huntington Beach CA

The law always lags technology and this is no exception.

However, I have a different opinion about where this goes. Yes, copyright law says work created by humans but the original work can be created and reduces into a tangle form in a number of ways. In the form of machine learning (AI), the authorship is still a human. It's just the input method that changes. This is what the Copyright office says,

quote;

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

unquote

It's not much different that copyrighting a photograph. The author points the camera, and the camera could be set on full auto. All the author does is press a button. The tangible form that is perceptable can be an electronic file, print, CD, etc. So he/she is creating work that is perceptable with the aid of a machine or device. In the case of using machine learning, rather than pressing a button, the author is defining in descriptive text terms, the image he wants created. Once the image is perceptable it should be copyrightable if it's sufficiently different enough from other copyrighted material to meet the definition as a derivative work All that changes is the input method. But the input method still requires the creative input of the author. Images and composites created using PS are copyrightable. A composite created using PS versus an image creased with AI still required the creative input of the human. It's just the input method that changes.

These are just my thoughts, taking a contrarian view. Don't know where the law will finally settle on this but I'm sure that it will be hashed out in the court systems for years to come.

terryMc Loc: Arizona's White Mountains

I wish I could understand this kind of reasoning. Not that understanding would change my opinion that doing everything to create an image is not the same as doing nothing, but I just wish I knew how people arrived at conclusions like this.

Person 1: Drive to the national forest. Take out the camera, choose a lens, put it on, set the camera to auto. Look around. Choose a composition, look through the viewfinder, see a tree. Think: I like that tree but the light is wrong, so I'll move five feet to the left, Yeah. that's what I want. Push the button. Camera records raw file. Take the camera home, download the raw file, spend an hour color grading, dodging, burning, tweaking, then print result.

Person 2: Sit down at computer. Type: "Tree in the forest." Computer generates 3 to 5 different pictures from nothing. Choose one.

Exactly the same thing, just different input method.

Merlin1300 Loc: New England, But Now & Forever SoTX

So - - how about this?
Use AI to create the image. THEN a Human Arteest (Arrr - Tee - st) EDITS the image producing a Human created final. THAT should be copyrightable.