A layman’s reading and commentary:
Unfortunately, the layman does not understand the difference between trademark and copyright.
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Very broadly. Trademark is meant to deal with brand representation for goods and services in commerce. Copyright is to protect creators rights to their work. One protects the logo of the movie, the other protects the movie itself.
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Yes, it kills me when folks don’t know that — it’s a basic definition of terms which one can look up in any dictionary.
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Apologies. I mis read your post. Coffee hadn’t kicked in.
Don’t be too hard on the public - I even see lawyers messing that up at times - and the popular media often mixes them up as well.
I have to say, I like their policy statement, but you can bet that news organizations using AI to “write” their articles are going to fight this interpretation. I’m also a bit skeptical of his “concept artist” distinction on copyrighting copyrighted characters vs art…Fasten your seatbelts, it’s going to be a bumpy night…
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I don’t see how a lawyer could pass the bar when their understanding of the language has them conflating copyright and trademark, and it worries me that there could be a bar exam which would pass a lawyer who did not understand this basic differentiation.
More proof that there is a direct correlation between one’s happiness and how little interaction one has with the legal profession.
The big questions of course remain:
- will any class-action lawsuits against the AI companies who cannot provide a reasonable provenance of their dataset gain any traction? One would assume Adobe would throw down in favour of such, and they have quite deep pockets and a lot to gain.
- what will the lobbying look like and what sort of laws will be enacted based on what public opinion and what sort of populist outcry?
It’s really not that grim, just “loose” vocabulary, often conflating “copyright” for “trademark” in my experience with other lawyers. it rarely reaches the final document/litigation stage in any event.
Your “big questions” are the real meat of the issue:
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Adobe, and of course Microsoft (don’t use our AI to train your AI) would not be averse to suing Google or anyone else over copyright infringement…
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Laws, we don’t need no stinkin’ laws - the patent trolls will now become copyright trolls and clog the courts for years to come. Just a variant of ransomware…
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Well, let’s layer this with private lawsuits for violating art copyrights:
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Could I jump in here and get your opinion on a hypothetical case?
If we take a look at the subscription plans for Midjourney (a popular Stable Diffusion based AI image generator):
You can see highlighted in red, certain usage conditions imposed upon the end user. For example, CC BY-NC 4.0 stipulates that attribution must be given for derivative works and those works must be non-commercial. Their TOS states this explicitly:
If You are not a Paid Member, You don’t own the Assets You create. Instead, Midjourney grants You a license to the Assets under the Creative Commons Noncommercial 4.0 Attribution International License (the “Asset License”).
So my question is, if AI generated works are effectively in the public domain, how can Midjourney actually reserve rights and license those rights to end-users? Moreover, by implying they “own the Assets” unless you pay them, aren’t they effectively lying to consumers?
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That’s a tough question for intellectual property experts beyond this lawyer. However, I would say it looks a lot like employee agreements that what you create on company time with company assets belongs to the company. Therefore, since we (Midjourney) are letting free trial members use our assets to rip off other sources, that belongs to us. Now I did not read very far into the referenced license, as it is very technical and and appears to be a trade association-like agreement designed to protect the Midjourney’s of the world; not creating a universal licensing standard.
So you can have your fun, but that magical mystical star and galaxy filled painting you just created will be sold by us to that strip mall game store to decorate their gaming area…
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But a work-for-hire can only be copyrighted when the work done is eligible for copyright.
Example:
A typeface design is a “useful article” and as such, is not eligible for copyright (in the U.S.) — if I hire someone to make a typeface design, the typeface design in-and-of-itself cannot be copyrighted. Similarly, if I write a computer program to create a typeface design, then hire it out to folks, I cannot claim copyright of the output because typeface designs (in the U.S.) are not eligible for copyright.
(Note that a typeface design is separate from the specific computer code which makes a font which can by copyrighted (see SSI vs. Adobe/Emigre et. al.))
How can these folks claim ownership of something which has been explicitly placed in the public domain, since A.I. generated work is implicitly not copyrightable (in the U.S.)?
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I’m afraid you are being too logical and common sense - this is contract law 101, and two people/businesses can contract for any purpose that is NOT IlLEGAL. These are MidJourney’s “toys” and if you want to play with them for free this is what you will agree to. This is not an adhesion contract brought about by disproportionate bargaining power because you have no expectation nor necessity to play with those toys - it’s your Faustian bargain.
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I thought it was illegal to assert copyright ownership over things which are in the public domain?
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This is a private agreement between them and you. So they can resell it because it is locked away in their universe and do what they want with it, include selling it to the gaming geeks for wall art.
The thing is, they don’t need the agreement to do so — the images created by this tool are implicitly in the public domain, so it should not be possible to assert ownership.
@WillAdams - I just don’t have any more gas in the tank and may well be wrong - I’ll let others here carry the flag - but I’m sure Midjourney’s lawyers are much happier at least claiming dominion over freeloader content by way of this alleged license.
Me neither — I don’t mean to be argumentative, it’s just that all of this makes me angry, and tired.
You can be CERTAIN that if it makes you angry you are right to be thinking we are all getting screwed…
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Sorry for leading you into the “lion’s pit”. 
But I figured Proximo has battled such beasts in the ring that this should mostly be a cakewalk for “the Gladiator” himself.
And I want to say, you DO entertain—more than even Russell Crowe’s famous GIF—because you also educate.
And that’s what I want to thank you for: all your posts, your elucidations, tenacity and humour on this topic have been truly expanding for the minds on TPCR.