Artificial Intelligence and Art: Think Piece
I don’t think AI art should necessarily be copyrightable. Here’s why.
I just wonder if we’re fighting Disney’s battles for them
TL;DR version: a) if AI images can be copyrighted, and b) there is an immense but finite potential (i.e. the image in a sense “already exists” latently in the generator, because anyone with the same prompts and Seed number will get the same results as you) — then what’s to stop corporations from batch prompting astronomical amounts of images and copyrighting them all in a pre-emptive landgrab?
First, I’m a huge advocate of AI art, and yes, I believe it’s art. I’m passionate about this practice, and I believe there can be skill and craft involved.
I also don’t believe AI ‘copies’ existing art; that’s a huge misunderstanding of how machine learning works. And while we’re busting misconceptions: AI image generators don’t keep copies of existing art. Training data is used for learning. In the same way, an artist doesn’t plagiarise every image she’s seen in galleries throughout her life that may have informed her art style.
And the humbling fact is, the amount of data taken from any one artist is about the size of a single tweet. It’s a crushing reality, but any artist’s style can be summarized by a few data points (which is why unbundling works —a process of prompting that I’ll blog about later. It’s like playing Taboo, or “Tell me you’re a Picasso without telling me you’re a Picasso”).
But I still have huge philosophical reservations about copyright AI art.
Stake your claim: The AI Art gold rush
One of the things I find fascinating about AI art is how deterministic it is.
Even with the mind-boggling myriad of AI images that we could create—almost a multiverse of images—if two AI artists use the same engine, the same prompt, and have the same Seed, they will get practically identical images. That’s why AI artists are often more protective of Seeds (the random noise that an image starts from) than their actual prompts.
There are two things about this. Despite the countless possibilities, it feels a little like a gold rush to grab the “Cheat code” first that will produce that exact image. It feels like they’re hidden secrets, Easter eggs in a game, or like in Ready Player One. We feel possessive about it: “Look, I’m the first person to /imagine what Steve Buscemi holding a cat might look like in a Wes Anderson film set on a retro-futuristic space station!” (©2023)
And there’s something to be said about this. Knowing that the art is latent, somehow waiting to be uncovered by the most curious and creative mind, gives a realness to it. I’m reminded of the old adage about statues:
“The sculpture is already complete within the marble block, before I start my work.” — Michelangelo
Refining AI prompts often feels like chipping away to reach the complete art beneath, which is one of the reasons I believe AI art is definitively Art.
Copyright empowers monopolies, and that means everything in AI
The problem is that if we make it copyrightable, it’s first-come-first-served for a finite resource. Now, that might seem ridiculous, when there are so many possible permutations of prompts and seeds. There are 4294967296 seeds in Midjourney, so the likelihood of two artists copywriting the same art is incredibly low. AI art seems unlimited. But if the potential for every image already exists, then there is a discrete (albeit astronomical) limit.
This doesn’t matter on an individual level. But copyright law isn’t really about protecting creators or the little guy: it’s about corporations. In fact, we have Disney to thank for why characters stay out of the public domain for 75 years after the creator’s death (for Mickey Mouse). The history of how Disney manipulated copyright law is one of cynical corporate greed.
While no one person could lay claim to an excessive number of AI images, a company with vast resources might secure ownership of 4,294,967,296 variations of all standardized text prompts. Almost like NFTs, but on an industrial scale. A company could automate the process to generate and copyright all images like “/imagine a beautiful person --Seeds 0–4294967295”
Basically, if you want to copyright AI art, what’s to stop a Disney or a Fox from scooping up massive amounts of generated content pre-emptively? What if your AI prompts only led to copyrighted images owned by major corporations, leaving no unique and unclaimed creative content behind?
The consequence of allowing AI-generated art to be copyrighted is that commercial interests will be forced to rapidly dominate the landscape:
What if corporations copyrighted all possible images before us?
But it gets worse. What if that industrial, copyrighted leviathan of latent AI images “got there first” with images and artworks that humans might have produced, just through the unprecedented scale involved? Like a hundred monkeys writing Shakespeare, but this time outpacing human creativity?
It’s extreme, but these are the times we live in. Of course, the images would have to be realized and generated (importantly, you can’t copyright an idea, and I assume this would apply to the unactivated potential of the immense but concrete number of possible images ‘contained’ with an art generator).
However, considering the rapid technological advancements, it’s not far-fetched to envision a Big Tech or stock photo site becoming a massive repository of all possible images. This would encompass AI-generated art andhuman-made art that has yet to be conceived.
The future of AI art might be licensing
Of course, no one generator contains the untapped potential of all yet-to-be-created images. The idea that copyright should remain with the AI itself might be worth considering. One key aspect to remember is that each platform possesses its own distinctive style, stemming from the variations in their respective training data (similarly, utilizing your own training data may be a creative way to avoid the looming threat of corporate monopoly).
By maintaining the copyright with the AI, we could encourage a more open source and collaborative environment for artistic exploration, allowing for a diverse range of creative expressions in the AI-generated art domain.
Another option might be for the AI generators to hold a nominal copyright that is licensed to you for commercial use as part of your subscription so that your work is protected from copycats but without granting any implied ownership. This approach could help balance protecting creative freedom and preventing corporate control over AI-generated art.
Truly democratic AI art is public domain
However, the most radical solution would be a complete rethinking of art. Perhaps we need to reconceive art as unconditional. Perhaps all art has to belong in the public domain. Will this hurt the livelihoods of artists?
Maybe not. I’m not an economist, but I think, in many ways, the explosion of images we will see in our visual culture may make infringement moot. Why copy art when you can create something just as good yourself?
We have a chance to increase creativity and innovation. Art should not be scarce. If we make it a commodity, we incentivize corporations to hoard it.
Making AI art public domain would remove competition, but the drive to create will remain. The social commitment to reward talent is persistent. There will always be artists we admire and commission to make artwork.
In this new paradigm, artists who captivate our imagination and inspire us will continue to be sought after for their unique insights and contributions.
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Jim the AI Whisperer offers advanced training in using AI generators to create stunning visuals and how to write original and compelling content. If you’re interested in discovering more, feel free to contact me.
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