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.
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.)