In the past two years, while AI painting has entered the public’s field of vision, it has also caused a lot of controversy.
In 2022, the AI painting "Space Opera" won the first place in the art competition at the Colorado Expo in the United States, which quickly aroused people’s attention to AI painting, which also triggered a series of discussions such as "Can AI participate in the competition" and "Can AI replace human painters".
AI painting is changing with each passing day and developing rapidly. While it is popular, it has been resisted by many artists because of the problem of "feeding pictures". At the end of last year, Artstation, a world-renowned art website, was screened by an icon boycotting AI works, and artists expressed their anger. At the beginning of this year, another artist filed a class action lawsuit against AI companies such as Stability AI, Midjourney and Deviant Art, claiming that AI companies violated the rights of millions of artists.
Controversy continues because legal progress has not kept pace with the development of science and technology, the current legal norms lack the identification of the ownership of artificial intelligence creations, and the copyright issue of AI paintings cannot be finalized. However, a recent letter from the US Copyright Office has aroused widespread concern.
Screenshot of letters from the US Copyright Office
In February this year, the US Copyright Office re-examined a work that was registered last year. This work is a comic book "Zarya of the Dawn" created by an artist named Kristina Kashtanova using the AI painting tool Midjourney. In a letter to Kristina Kashtanova’s attorney, the US Copyright Office made a new administrative decision: cancel the original copyright registration of Zarija at Dawn and re-register the comic book as a compilation. The reason is that Kristina used the AI tool to create the picture part of the cartoon, but she didn’t explain it when she first applied. The US Copyright Office thinks that this kind of AI painting is not a work created by a human author, and it is not within the scope of "works" protected by law, so it can’t be registered.
The cover and some illustrations of Zarija at Dawn
In the letter, the US Copyright Office emphasized that the protection scope of The Copyright Act is original works, and originality includes independent creativity and full creativity.
Kristina Kashtanova argued that she constantly revised the prompt to achieve the final desired result, and that she also PS-processed the generated pictures. In this regard, the US Copyright Office responded: constantly improving the picture by modifying the prompt is not creation. Kristina Kashtanova’s prompt expression is very short, and the main creative process is completed by AI. What she does is selection rather than creation. In addition, she did too little PS processing on the picture to be considered as creation.
In addition, the Copyright Administration also pointed out that people can’t predict the specific output results of the Midjourney tool. This lack of "creative control" and "dominance" proves that the descriptions and instructions that Kristina Kashtanova only inputs in the AI tool are only "suggestions", and the final generated pictures are still in the final decision of AI, so the works do not contain human creativity and are not "original", which further proves that the Midjourney in this incident is.
If the "uncontrollable" problem emphasized by the US Copyright Office is solved, will the works generated by AI paintings be copyrightable?For example, the ControlNet model of the recent fire has realized the precise control of AI generation to some extent through various image analysis methods such as attitude recognition Openpose, Depth detection and edge detection Canny.
In this regard, we specially consulted Xiao Sa, a senior partner of Beijing Dacheng Law Firm. She explained: "The uncontrollable generation of pictures is one of the reasons and basis for the US Copyright Office to determine that AI works are not original, but precise control is not the essence of the copyright of AI works.The key to whether the product of ControlNet is copyrightable lies in whether it can embody the "originality" of human beings sufficiently and clearly.
If it can be proved that the works generated by AI are original, will they be protected by copyright?
Lawyer Xiao Sa: "It will be protected by copyright. The court of our country has made such a judgment-a Goose Factory Computer System Co., Ltd. v. a company in Shanghai for a dispute over copyright ownership. Tencent developed an AI software called Dreamwriter, which can automatically generate news articles according to the latest situation of the stock market. The defendant reprinted the article without permission, causing disputes. In the judgment, Shenzhen Nanshan Court held that the AI article involved was a work in the sense of Copyright Law: "The creation of the work reflects the originality of a goose factory team in data input, triggering specific conditions, language style selection, etc., and it is copyrightable and should be protected by copyright law."
If the work generated by AI cannot be proved to be original, can the author not enjoy the rights to the work?
If we can’t prove that the AI work is original enough (or the administrative organ doesn’t recognize this originality), we can try to combine the AI work with other protected works. Taking the ruling of the U.S. Copyright Office as an example, aside from the controversy over the copyright of AI works, the Copyright Office has given a realistic solution to the problem that AI paintings are not protected by law-combining with other protected works. For example, comic books involved in the case, although the pictures are not protected by copyright law, the written works (story content) embedded in the pictures belong to works in the sense of copyright law, and both of them can be protected in the form of compiled works, and the author still enjoys the rights to the works.
Some anti-AI groups think that the ruling of the US Copyright Office denies the copyright of AI paintings, but is this really the case?
At the end of the letter, the US Copyright Office specially emphasized that they did not completely rule out the possibility of accepting the copyright registration of AI painting, but only decided that the author’s influence on the image in this case did not reflect enough creativity. In other words, the ruling of the Copyright Administration is only the first time to demarcate the judging boundary of whether AI works are copyrightable at the official level, that is, human originality.
With the change of AI painting technology, it has become a "past tense" for Kristina Kashtanova to rely solely on text information to generate works. Nowadays, many AI painting lovers will build their own models and use the database to train AI, such as various Lora models that are now self-trained on Stable Diffusion. This kind of behavior seems to greatly satisfy the copyright condition of "originality", but it also brings about cliche problems.Does using AI constitute plagiarism? Will it constitute infringement?
Lawyer Xiao Sa gave a detailed explanation: "Whether AI painting infringes is a very complicated issue. In judicial practice, Chinese courts generally follow the standard of "contact+substantial similarity" to judge whether a work is plagiarized, that is, two conditions need to be met: (1) the author of the later work has "contacted" the former work (it is only necessary to prove that it is "likely to contact", for example, the former work has been published by the author on the Internet); (2) The composition of the post-work and the pre-work is substantially similar (abstract observation and overall observation are used for comprehensive judgment on substantive similarity).
We believe that AI works are difficult to be identified as "plagiarized" works under this judgment rule. On the one hand, it is impossible to prove that AI tools have "touched" infringed works by proving that the works have been published in public, as human works do, because AI painting tools are a product based on the combination of massive original data and specific algorithms, and only when the massive original pictures used by AI painting tools to train large models contain "infringed" works can they be "touched"; On the other hand, AI works are very random. Although there may be similarities in painting style and theme with other works, this similarity belongs to the similarity in thought rather than the similarity in expression protected by copyright. Therefore, it is difficult to prove that there is a "substantial similarity" between the two works, whether it is abstracting its single element and comparing them with the infringed works or comparing them from the overall impression.
Lawyer Xiao Sa believes that high probability does not constitute infringement. Generally speaking, AI creation does not infringe the rights of works and authors. As mentioned above, the object protected by the copyright system itself is the expression of original ideas. In other words, it focuses on the expression rather than the thought itself, and the thought, as a subjective thing that has not actually happened, is not within the protection scope of the copyright system. Only this kind of thought exists objectively as an expression and is original can it exist as the object of copyright protection. Therefore, in the field of copyright law, expressions cannot be copied, but ideas can be used for reference. Painting style and subject belong to "thought" rather than "expression". In this sense, the imitation of painting style belongs to the reference of thought rather than plagiarism, so it certainly does not involve the infringement of copyright. For example, birds are also sketched. A picture of a flying bird created by Xiao Zhang is of course different from a picture of a bird perched in a tree created by Xiao Li. Both of them are also within the scope of the works, but there is no infringement relationship between them.
Whenever new technologies and tools appear, they are bound to be questioned. In the future, we may still need to conduct more in-depth legal and ethical research and discussion on the copyright ownership of AI’s creative works. But we have to admit that the trend is irresistible, and it is almost impossible to get the upper hand against a technology with great commercial prospects and practical application that can significantly improve production efficiency.
It is worth noting that in the publicity of the rule of law in Weibo, the official city of the Supreme People’s Procuratorate, China, pictures generated by AI painting tools have been used.
