Something New Every Week
Something New Every Week
Demystifying Infringement and Ownership in AI Photography
Ready for some legal brain teasers? Picture this: a monkey takes a selfie and the image goes viral. Who owns the copyright? And what about AI-generated images, who can claim authorship? Meet our expert guest, Aaron, who navigates us through the entangled web of legal issues in the AI and photography world. We dive into the challenges of proving infringement with AI-generated images and the importance of claiming authorship. We untangle the knots between artistic creativity and AI assistance, questioning the complexities of ownership and copyright claims.
As we zoom into the second part of our conversation, we focus on a peculiar legal case involving a monkey's self-portrait. This unusual instance prompts us to question who owns the copyright when a non-human entity is behind the lens. We explore the intersection of AI, copyright and the right to derivative works, acknowledging the broader challenges of reconciling copyright law with the constantly evolving technology. Join us as we delve deeper into these thought-provoking issues, and provide you with a clearer picture of the changing landscape of AI in photography.
Hey there, thanks for tuning in to Something New Every Week with your host, me, Jason Group. Each week, I'm going to give you something new that's happening in our photographic world just some great conversations with my friends and what's going on right now. Something New Every Week is sponsored by Miller's Lab. Miller's Professional Imaging is the largest professional lab organization in the United States. They provide professional prints and press products for professional photographers in all 50 states and Canada, and they're just a great company. If you don't know them, go check them out, MillersLabcom. And we're back.
Speaker 1:That just gave me the place to pause that. So if you were listening to the last episode, we were talking about Lynn Goldspitz's case against the Andy Warhol Foundation. It was super interesting and thank you for all of that information, and I know that Jackie has some other questions, but I really wanted to just get right into the AI stuff and the stuff that you talked about, because I think that is the most important thing that's happening to us right now Real time. We're not all famous Lynn Goldspitz photographers, but this AI is a brand new thing and I don't know if you want to follow up on that question, jackie, before we give Aaron a chance to talk. But yeah, I want to give you a chance as well.
Speaker 2:I just wanted to explore what are the biggest issues right now with AI and photographers. I know they're concerned about a lot of different things in the copyright, of course, but who are photographers coming to you with their concerns, or have you had a case yet about that?
Speaker 3:I had a couple issues with it. There's a couple different areas where legal issues are popping up. One of them is using AI technology using other people's photos to build on their AI and whether that's infringement. So they're kind of scraping the internet of photos and then using that to improve their AI technology.
Speaker 1:So that's one area.
Speaker 3:Another area is for photographers who use AI. How much are they reliant on it and how much are they changing their photo from the original photo? So if they're kind of using it more as an editing tool, but then some photographers and some famous Instagrammers and things like that, they are creating images purely based off of AI and the question then becomes do they own the copyright to that? If they didn't make it, really If the computer, I mean, they may have put it in an input and now popped an image Do they own? Do they have ownership over that? Or is it just kind of free for everyone? Is it part of the public domain? So those are kind of some of the areas, that where AI has been affecting photography.
Speaker 2:What would your advice be to a photographer who had a concern that they had an image that was then manipulated or like? I don't know if stolen is the right word, but I don't know what you would term it. Yeah, I mean.
Speaker 3:So AI technologies. It's hard to figure out how to know everybody's doing something kind of different, but there are cases where people are accusing certain AI companies of using previous works. So you're going to have to show that somehow. And that's a difficult thing to do is to show how, because what's happening is these AI generated images. Nothing is the same, so it's I mean, it's completely everything, everything that's. You know it's like a snowflake. You know everything's. Everyone is different.
Speaker 3:So they may have based it off of someone else's image, but it's a pretty hard thing to prove. But I think the biggest, the biggest issue is when the top developers go to register their works, they have to claim on the copyright registration. Are they the author? And I think this question of authorship who created this image is becoming a real problem, and it's not something that has been really dealt with right now.
Speaker 3:There are a couple of cases, but there's not really any good precedents out there about OK, how much do I need to rely on? Can I and can't I rely on AI? And when does that become no longer my photo? So, in a sense, when does it transform in this issue? And so where courts have come out on this is what the case is, a fact-specific analysis, and what they want to do is they want to look at OK, it's OK to use AI technology software for your editing, but are you the one making and this is a question that photographers should ask them who is making the artistic determinations in the final product of the image? Who made those? So I tell the AI, I'll turn the background green. Ok, I made that artistic decision. If I say OK, I want to add more of this type of trees.
Speaker 3:maybe I did it, but if I said AI, clean up this photo, I mean you could be as broad as that. Make this, put in a sunset of any color, do your thing. Does it really? Is it your throw?
Speaker 2:at the end of it.
Speaker 3:And that's it's really kind of. I think a lot of times what's going to happen is defense attorneys for copyright infringement cases where they get a hint of the fact that this image could have been partially generated by AI, they might say they might make the argument that no one really owns that image, that it wasn't authored by the individual. It was authored by an AI software, and AI software can't own copyrights. People own copyrights. So what happens in that case is it becomes. You could argue that then an image becomes public domain, and what I mean by public domain is that the image doesn't have an owner, it doesn't have a copyright to it and it's free for everyone to use.
Speaker 1:So I have so many questions and so long. So there are artists now on Instagram especially, that are using I'm blanking on these programs now, but are creating this artwork with prompts and selling this work, and is there any precedent at this point that they actually it is their work or because this program created it Like? Can I register that copyright if it's created by mid-journey or you know, like the others?
Speaker 3:And so far the copyright office has said no, you can't register it, you're not the author and that's where this had come out.
Speaker 3:That was it's a good case is someone created an image, I think on mid-journey, and they just put in one sort of simple prompt and everything was generated, and then they wanted to copyright it, and the person they said who's the author? And the person wrote the person who created it is the. It was the AI software that was used, but they're the copyright owner. And the copyright office said well, no, the author has to be a person in order for there to be a copyright attached to it, and the AI software is not a person. And there you have it. So that's where that's so far. That's where they're coming out at.
Speaker 3:So what that means though see, it's funny you know, like as a human nature instinct. When we create something or when it comes out of our computer, you know we think we own it right, and you might own, like, the physical nature of it, like if you've made a print of it. No one can take that physical piece of property from you. But if you decided to take that, take that, that image and put it online and someone you know copy and pasted it, you may not have any rights to stop them because you don't have a copyright. It's likely you don't have a copyright in it, even though you may be made a general prompt. But if you made no other decisions than just kind of putting in a general prompt of what you wanted the majority to spit out, then that's it. It's likely you don't got anything. And that's where, because it's a really tough you know, there was a case about this with I think it was a monkey or a gorilla or something that took a photo. Use someone's camera to take a photo.
Speaker 1:Yeah, you talked about this.
Speaker 3:Yeah, and that's kind of the a lot of cases that they this case has relied on with. This is because the court grappled with okay, well, who can own a copyright, you know, and they're like well, animals can't have copyright. I mean, you know, can't have copyright, so that's a which I think is unfair, that's where the decision is yeah.
Speaker 3:So we don't think it's possible for using it, though I think you know. I think people are using it for editing, which is very helpful, because traditional editing knows you would call the image, you go through each one yourself, then you would do it, make your decisions yourself. Now you can, I'm sure, do this by just putting in a general you know, demand request and then having the AI just go through everything but a lot of the changes.
Speaker 3:but remember so this is something to keep in mind is that photographers have rights to the derivative works. So if the work, the final product, is not very different than the original Right. So like, let's say, a photographer removed, you know, had the AI software remove blemishes from someone's face, but they did it, you know, the AI software did it automatically. The person, the photographer, just kind of put in a prompt and then they went through all the images. The photographer has a right, any work that is substantially similar to the original. So that's why you know a photo that becomes a painting, or you know a work of art that someone takes a photograph of. They have rights to those derivative works as well. So that's why if you change a photo to black and white, you don't need to register the color image and the black and white image.
Speaker 3:You just need to register one of, because they're substantially similar to the original and have a right to make it derivative work. So that's where you're going to be. So, with AI, if they're making these decisions, that's really not changing the overall photo itself, just minor changes, then you shouldn't have an issue. But I know some photographers that they're actually the only thing they're keeping in. There is like the person's head and everything else is. You know, a photo has been completely changed. Maybe there's a land like a cityscape added in and all sorts of stuff, and so there's a question of okay, well, is that really your photo anymore?
Speaker 2:And.
Speaker 3:I think that those are going to be decisions that are going to be, of course, are just going to have to deal with.
Speaker 1:As they come, they're just not equipped.
Speaker 3:It's crazy because you know the technology, especially that is moving just so fast and so many different issues are popping up left and right. I just don't think the copyright law was not written for stuff like this really, and it's going to be really hard. It's like trying to fit, you know, around peg into a square hole. It's going to be really hard for the courts to reconcile, okay, this whole set of laws with this new technology, how they come out on. So we kind of have to wait and see.
Speaker 1:Right and you know I'm curious about is there? So if I make this person who made the picture in mid-journey and then wanted to register it, is there a? Is there? Is there technology that can tell us what it was created with? Like, is it the metadata there? Or can some that's that same person just say it's my picture and I'm registering in a copyright? You're gonna have to prove it.
Speaker 3:Yeah, I mean the, the copyright office. There is AI detection software out there which is really popular now.
Speaker 3:You know Cuz, universities and things like that having to use this stuff for people right papers. So I don't know how much there is for images, but but regardless, the copyright office doesn't do any sort of due diligence on their part to go and check to see they're not gonna run their stuff through some sort of soft. At least for now they're not gonna do that. What they are gonna do is they're gonna rely it. You know you have to swear under oath. You know in the form of like an affidavit, when you register your image right.
Speaker 3:That you are the creator of this image. And if you're not the creator, if you're a co-creator, you have to say that and then you have to provide the information of the other co-creator. And if it's, if you are registering your image and you're saying that you are the creator, but 90% of that image is done by AI, that is a problem and it's You're likely to get a. But the copyright office is not gonna know where this is gonna really come out at. Is Is defense attorneys for copyright infringement. They're they're gonna really hammer down.
Speaker 3:Did you make this? I want to see. They're gonna demand and discovery. I want to see the raw image and I want to compare the raw image To this font, to this image you registered, and let's just see how different it is. And then there, then you know they're gonna want to go into the history of whatever Program you used and I want to, you know, show us the history and how you can't have this final image came out. Where did you make the decision? It's gonna, they're gonna put people under oath and it's gonna be tough, you know. So you may get that final registration, but if you accuse someone of infringement, attorneys are gonna start asking for stuff like this, because it's gonna be more images than not I think are gonna be. More Gen are gonna be generated by AI. I mean it's just such good. You mean that, are you just gonna be like?
Speaker 1:You mean that? Are you saying that lawyers are gonna take advantage of this precedent to help them help their clients? We lost Aaron, I think.
Speaker 3:You know we're gonna be. Yeah, we're gonna take advantage of anything we can. You know, I think too it's important that if they do do this to really kind of keep track of you know what changes they made To the but. You know, but for the most part photographers aren't gonna run in these issues unless they're sort of Because generally at least a lot of my clients are their event type photographers and weddings and things like that their the images are just going to their clients, they're not kind of being put out and so you know that's. They're not their clients not gonna know and I don't. Honestly I think their client probably won't care and if lies are getting a good product, that's all they were.
Speaker 1:Right, right, yeah cool you Well, we've taken a lot of your time, Jackie.
Speaker 2:You have one more I didn't have to start short.
Speaker 1:Well, I want to give Jackie an opportunity to ask one more question, and then we'll let you go.
Speaker 2:I was just going to say you know, it's like there's so much information that it makes my head spin. I mean, I just recently got a handle, I think, on NFTs, and that was like from a couple of years ago. Now Everyone's talking about AI and those implications for photographers. I don't know what's coming next, but you know there'll be something next.
Speaker 2:And I think that you know. Again, it sort of all originates with what you were saying before Like, photographers need to like register their copyrights right immediately, no matter what, because there's also going to be always something next to worry about. But yeah, I just I really appreciate your time. It's so much great information that you've put out there, so thank you for that.
Speaker 3:Jason.
Speaker 3:I appreciate it. It's really nice to talk about this. I mean, it's hard to tell where this will all go and what will come next, but I do think you know the basic tenets of copyright will last. I mean things, the essential prong to what is copyrightable is whether it is original to the artist. So as long as photographers keep it a ridge, they're all good. So that's what they should be doing. They got a lot of skill and they just use it. You know. But yeah, no, I really appreciate the time too that you guys spent with me and give me opportunity to talk about this stuff. It's always a fun thing to do.
Speaker 1:Yeah, are you? Are you going to be speaking anywhere in the near future where we could see you, and we're going to put links to all of your information in both of the show notes for this, yeah.
Speaker 3:Well, I put in a hopefully at WPPI we'll see they have the call for speakers. And I put in an AI talk because I want to go more into detail about that, because I think, that's the biggest shoe going on right now.
Speaker 3:You know I write every now and then I'll write some articles, but if people want to reach out to me, if I have questions about something, you know, contracts related or copyright related or anything, I mean we handle a lot of different matters. We're not just copyright but we do a lot of different, a lot of different legal issues and a lot of different legal issues. So, yeah, they can email me. It's erinette starklaw, my website is starklaw. It's very simple, starklaw, and feel free to reach out to me. I always have the opinion, consultations and general advice, maybe here if they need me for something more substantial. So thanks, guys, I appreciate it.
Speaker 2:Thank you.
Speaker 1:Yeah, thank you, and, as you've heard in this, he's a friendly guy, so he's a good person to reach out to and, you know, definitely a great person to know on our industry. Thank you so much for your time. I'm fascinated by this stuff and it's I have a feeling we're going to have you back at some point with with all of this leading up to the PPI, because, as you said, this is changing so fluidly in our industry. So, again, so if you have a question for Aaron, you can reach out to me, or definitely reach out to Aaron. Thank you again for being on this week's episode of something new every week. Take care everybody.
Speaker 2:Thanks yeah.
Speaker 1:Thanks again for tuning into something new every week. I hope you enjoyed this episode and if you do enjoy these episodes, I love it. If you hit that subscribe button on, however, you're listening to this again. We want to thank our sponsor, Miller's lab, Miller's labcom Great company. If you're not familiar with them, you should go check them out. Thanks again for tuning into something new every week. We will see you back here next week.