AI Update: Copyright And Other Things

From Kristine Kathryn Rusch:

It is probably not a bright idea for me to write this post. I finished it a few days ago, and things changed. You Patreon folk will see it at least a week before the website folk, and by then, I expect everything to be different again. So I’ll be updating it. Those of you hearing it on audio will hear a version recorded in the middle of September. Sorry about that.

Anyway…

At the beginning of September, Can Stock Photo announced it was going out of business. I have used Can Stock Photo since 2009 to source the art you usually find at the top of this blog. When AI art became good enough to pass as regular art, I got a lot more cautious with the downloads for reasons I’ll discuss later in this post.

What I did on Can Stock Photo, and apparently, what I’ll do going forward on a different site, is that I would only use art uploaded before 2020 or so. That way, I knew the art was the work and property of the artist, and not created by some website that more than likely stole someone’s artwork to train the bots.

I can’t improve on Can Stock’s words in their closing notice:

After nearly 20 years in business we have been forced to make this very difficult decision and would like to thank our many thousands of talented contributors and customers for making it possible. The industry has changed significantly over this time, with CanStock launched in 2004 during the early mass adoption of digital cameras, and before ‘social media’ was even a phrase. Today of course everyone has a capable digital camera in their pocket, and the advent of AI means amazing images can be created for free from programs with just a few keywords. Decreased business and increasing costs has made it no longer possible to keep operating, to our great disappointment.

In theory, the licenses that every person who used Can Stock Photo agreed to will remain in effect, although the prudent thing to do is download the license for each piece of art used, particularly on those used in for-profit ventures, like covers and the like.

You should be doing that anyway. When you contract with an artist, it should be a valid contract. When you download art from a commercial site, you should also download the license for that art. It’s easier and better for all around to keep these licenses in two files, one on your computer and one in paper…because, yes, folks, computers die, programs disappear, and sometimes you can’t access something you downloaded ten years ago because the programs have changed so much that the files are no longer compatible.

What remains compatible? Paper.

Why would you want to do this? Well, we’ve been reviewing our licenses at WMG Publishing, some twelve years old, because we’re opening stores with merchandise. Most of our covers come from artists like Philcold, whom we found on Dreamstime, and then worked with directly for projects like my Diving series and Dean’s Seeders series.

Not every license allows for merchandise. Many don’t even allow book covers over a certain number of sales. A lot of writers who are careless about such matters simply make an assumption that they have the right to use these things.

They don’t. And to make matters worse, the licenses and terms change all the time. So if you go on, say, Dreamstime, to look at the license today for something you licensed in 2015, today’s license does not cover the 2015 download. What covers the 2015 download is the 2015 license that existed on the day you downloaded the art.

Yes, some sites save their previous licenses, and some sites don’t. It is up to you to know what, exactly, you licensed.

Then you need to understand it. It isn’t something that’s a one and done. Copyright law shifts all the time. That’s why I took a two-semester class in copyright law at University of Nevada, Las Vegas, in 2021. I know copyright, but I don’tknow all of it. I have a current copy of The Copyright Handbook, and I use it.  I also keep track of various court cases and read a lot of law blogs on copyright.

That does not make me an expert or an intellectual property attorney. I’m not even close. But I am informed because this is my business. It’s my job to stay ahead of everything that’s going on.

And a lot is happening on the copyright front with the copyright of works that incorporate artificial intelligence.

In an important case that came down in August, Judge Beryl A. Howell of the US District Court for the District of Columbia ruled with the copyright office and against a computer scientist who claimed that a two-dimensional piece of art created by his AI program deserved copyright protection.

The essence of Howell’s decision, as explained by Bloomberg Law, is this:

Howell found that “courts have uniformly declined to recognize copyright in works created absent any human involvement,” citing cases where copyright protection was denied for celestial beings, a cultivated garden, and a monkey who took a selfie.

The ruling is the first in the country to examine whether or not AI art is copyrightable. That’s iimportant because, for now, that and the ruling from the copyright office are the guide. As Howell herself noted in the decision, there’s a lot more for the courts to decide. She wrote:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an“author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works,how copyright might best be used to incentivize creative works involving AI, and more.

But these issues aren’t settled yet, and might not be settled for years. The way that novel questions of the law get settled in the United States is for them to wend their way through the courts. Sometimes the appellate courts agree, and then the issues are decided.

Occasionally, though, the issues are so complex and the courts are so divided that the issues will make their way to the United States Supreme Court. Unless that happens in an expedited manner, issues like that won’t see a resolution for eight to ten years, maybe more.

Link to the rest at Kristine Kathryn Rusch

Along with Kris, PG recommends The Copyright Handbook, published by Nolo Press as a good acquisition for an author’s library. It’s written with laypersons in mind. Much of the book is not difficult for a non-lawyer to read and digest.

One of the benefits of The Copyright Handbook for an author is issue-spotting. The book may help the author to suspect that she/he/they are on slippery ground or that they’re getting into an area that might end up being slippery.

That said, The Copyright Handbook is not a substitute for a competent attorney for anything but the simplest copyright questions/issues. (PG thinks he’s still competent on most days, but he’s no longer a practicing attorney.)

14 thoughts on “AI Update: Copyright And Other Things”

  1. While I found the post had many valid points, I suspect there is no chance of a legal ruling that anyone would lose copyright over a book’s TEXT because of AI art on the cover. I really wasn’t sure where that idea came from.

    • Probably the copyright office.
      Remember, they denied copyright on a comic book that contained “AI”-derived art. Then, after much fighting, grudgingly allowed only partial copyright, thereby telling anybody using similar software to never admit it.

      Gotta say, KKR sounds sadly curmodgeonly in this post.
      “That way, I knew the art was the work and property of the artist, and not created by some website that more than likely stole someone’s artwork to train the bots.”
      Sure!
      And citing court cases that say nothing about the legality of the training databases she deems “stealing”.

      The whole AI-angst thing is getting way out of control.

      I imagine that next we’ll hearing about uprisings by humanoid robots like this one:

      https://m.youtube.com/watch?v=XiQkeWOFwmk&pp=ygUQdGVzbGEgcm9ib3QgMjAyMw%3D%3D

      Like it or not, folks, the world changes.
      Adapt or get left behind.

      Refusing to use new tools only means you’ll be outcompeted by the humans who do.

      • No nuance.

        As if an ideologue gtandstanding by claiming copyright on behalf of a monkey or a machine is somehow the same as claiming copyright on behalf of a human that used software in producing their output. Last I heard, copyright has no saybover production process; that is the reslm of patents and trade secrets.
        What next? Deny copyright on spell-checked manuscript? On smartphone photos becuseof the “AI” embedded in the camera?

        https://www.zdnet.com/article/how-samsung-is-using-ai-software-to-up-the-camera-game-on-its-smartphones/

        “Samsung has applied approximately 60 new AI models run by the neural processing unit (NPU) to optimise the functions of the Galaxy S22 Ultra smartphone camera, a company executive said.

        “This has allowed the South Korean tech giant to offer camera experiences that can satisfy casual users with the best photographs possible and professional users with RAW files equivalent to those taken on DSLR cameras, said Joshua Sungdae Cho, vice president and head of visual software R&D at Samsung’s MX Business, in an interview with ZDNet.

        “We’ve applied NPUs to our smartphones for the first time three years ago,” said Cho. “At the time, these NPU ran approximately 10 AI models. On the Galaxy S22 Ultra, there are now 60 AI models. Basically, the NPU is involved in nearly all functions of the cameras.”

        “AI models are decision-making algorithms that are trained through a dataset to apply to certain tasks, while NPUs are chips designed specifically to process such algorithms.

        “One particular AI model Samsung used for the Galaxy S22 Ultra is for the portrait mode, in which recognising the depth between the person and the background to separate them — also known as segmentation — is crucial.”
        —–

        To be clear, digital art is indisputably the creation of a human: a human crafted (and iterated) the prompt the software used to create a *range* of images from which the human *chose* the one *they* considered best and either used it as-is, or more commonly, processing it through PhotoShop, Paint Shop Pro, GIMP, or whatever.

        By contrast: for a digital photo, a human chose the subject, iterated the distance, angle and composition the camera tweaked to create a *range* of images from which the human *chose* the one *they* considered best and either used it as-is, or more commonly, processing it through PhotoShop, Paint Shop Pro, GIMP, or whatever.

        What’s the difference?

        (sigh)

        Now I’m the one getting curmogeonly.
        Too early for this kind of nonsense.

        • I’d say she doesn’t get how machine learning actually works, but her actual chosen issue to write about, don’t risk your work when there’s unsettled law because courts can’t be guaranteed to land where they probably ought, she had some actually valid points about that.

  2. I second the recommendation of the NOLO Copyright Handbook, for an entirely separate reason:

    Failure to see a clear answer to your own situation after consulting the Handbook with an honest assessment of your circumstances is a darned good indication that you really do need an attorney who does IP law. And as a bonus, after reading the Handbook (you did read it, not just page through to the part that you thought might have a comforting answer, right?), you’ll be in a better position to efficiently communicate to that lawyer… and fully understand the response. (Which, if the lawyer is any good at all, will be a variation on “It depends; here’s what it depends on, and here’s the most-probable-but-far-from-certain result.”)

    • Also, in the real world USA, doesn’t the success of a copyright lawsuit depend, to some extent, in what Federal Circuit you’re located in? (e.g. LA vs Manhattan NY vs Manhattan KS)

      • Tony, I think you mean which federal district one is in/the defendant is in (you listed districts, not circuits) — but you’re right either way.

        One of the reasons for this is that most copyright lawsuits turn on civil procedure as much as on copyright law,† and for that the kind of plaintiffs’-side representation one gets in Manhattan, Kansas will probably be better than in Manhattan, NY. In my experience, anyway: Waaaaaaaaaaaaaaaay too many NYC litigators — even those who concentrate on federal-court matters — have had their brains squished out by all of the New York state civil procedure they had to learn to pass the bar. (One of the NYC-based counsel in [redacted] tried to lecture me on proper procedure using state-law examples; he was later one of the lawyers in the Google Books fiasco.)

        † <sarcasm> What about the facts? This is the internet. We don’t need no steenkin’ facts! </sarcasm>

    • Exactly. I have always held the view that an educated person should know the law – well enough to know when you need to get a lawyer. What kind of lawyer, too – you can’t just look for an “IP lawyer” – because you need a copyright lawyer, not a patent lawyer or a trademark lawyer. A few are competent in all of the subfields, but not many.

      • Yes, to actually file suit one needs a copyright lawyer. The problem is that the lines among copyright, trademark, and unfair competition… aren’t lines. Instead, we’re dealing with Satan’s Ven diagram. An IP lawyer will know how to focus things; many “copyright lawyers”… don’t. Especially since a considerable majority of those who characterize themselves as “copyright lawyers” work on the wrong side of the transaction/lawsuit from the author.

          • It’s much more complex than any shorthand description can enable without being deceptive. By analogy, it’s similar to one problem that the US Army has with its newly-promoted brigadier generals. The Army has a rather rigid “branch” designation for all officers below flag rank (so do the Navy, the Marines, and the Air Force, except that despite that designation there’s a lot of cross-field assignment that softens the problem), but by definition in the Army’s system brigadier generals are responsible for substantial multibranch units. In turn, that leads to blind spots, unconscious favoritism and unwarranted credibility enhancements (giving excessive weight/credibility to the opinions of those in one’s own prior branch†), and other easily-imaginable tendencies that require a great deal of conscious effort to overcome.

            Now throw in that under the legal regulatory system, lawyers pretend that they are not specialists, and in particular that a specialist in copyright law and matters is prohibited from using the “s” word to describe their practice. That is, there’s overt, indeed required, denial of all of the problems that brigadier generals are at least made aware of in their week-long orientation course and all of those conferences with more-senior flag officers. The same, of course, goes for “IP lawyer” and “federal litigator” and “contract lawyer” and “insurance-defense counsel” and…

            Then go back to the point I raised: That Satan’s Ven diagram demonstrates rather well that “the client came to me complaining about a copyright issue” is the starting point at best. This is why going to the specialist too early is dangerous — not to mention that the understanding of what that specialist is differs between the attorney’s own perceptions/experience and the client’s understanding/needs (and all four of those aspects differ!). Then throw in that the “right lawyer” for a particular potential or actual dispute depends as much upon personalities matching closely enough for effective communication between that lawyer and the client (a problem that is easier to overcome, but nonetheless present, in a military environment)…

            If you’re getting the impression that I despise this problem and see it as a significant and fundamental barrier to meeting the actual needs of actual clients, you’re understating things. Most of my challenges as a second-career lawyer have revolved around (imperfectly and often too delayed) understanding the pressures of how lawyers live down to the undisclosedly-low-and-deceptively-hidden standards of the profession, and this is one of them.

            † Unclassified Exhibit A: Desert One.

            • Non-sequitor: the bit about the brigadier generals brought back a plot point from one of the VORPAL BLADE adventure SF series. Earth’s first starship is a rush job, converted boomer sub carrying Force Recon marines and commanded by Navy officers. The first captain was an ex fighter pilot carrier wing commander and when right off the bat the ship suffered damage and took casualties and kept on going. “Til we run out of food or marines.”
              As the series progressed Earth “acquired” more ships and the main protagonist had been rush-promoted to First Officer and asigned a new captain, from the sub service, for him to “teach” the ways of space. They sustain damage and the new captain wants to return for repairs, which brings up the cultural differences between the two navy services and what kind of culture the emerging Space Force would have: bold, mission first or cautious, ship first? And with the ship being a one of a kind using not fully understood alien tech, both options were defensible. And earth looking at an imminent invasion by hostile forces on a short timetable raised the stakes.

              Not something that often gets addressed in military SF, but with the author a vet, something he clearly was familiar with.

              Filed away under “good to know” along an old comment that US high rank officers fall into two buckets: peacetime generals with political skills and combat generals for when the guano hits the fan.

              A common occurence apparently since in the day job we had two breeds, too: career ladder climbers, planning for their next promotion from the minute they walked in to the new job; and performers who showed up to do the work the job required.

              Politics everwhere.

              • Although Adm Rickover was great at politics, and maybe loved his nuke plants too much, there’s a reason he insisted on having a Battleshort switch on all the nuke subs.

                Btw, the USN insists that all sub offices know both parts of the ship (reactor and the rest), while the RN splits the two groups. (And, of course, the RN serves beer and liquor on board)

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