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Painting by numbers

heron-thames-nw.JPGMy camera can see better than I can. I don't mean that it can take better pictures than I can because of its automated settings, although this is also true. I mean it can capture things I can't *see*. The heron above, captured on a grey day along the Thames towpath, was pretty much invisible to me. I was walking with a friend. Friend pointed and said, "Look. A heron" I pointed the camera more or less where she indicated, pushed zoom to maximum, hit the button, and when I got home there it was.

If the picture were a world-famous original, there might be a squabble about who owned the copyright. I pointed the camera and pushed the button, so in our world the copyright belongs to me. But my friend could stake a reasonable claim: without her, I wouldn't have known where or when to point the camera. The camera company (Sony) could argue, quite reasonably, that the camera and its embedded software, which took years to design and build, did all the work, while my entire contribution took but a second.

I imagine, however, that at the beginning of photography artists who made their living painting landscapes and portraits might have seen reason to be pretty scathing about the notion that photography deserved copyright at all. Instead of working for months to capture the right light and nuances...you just push a button? Where's the creative contribution in that?

This thought was inspired by a recent conversation on Twitter between two copyright experts - Lilian Edwards and Andres Guadamuz - who have been thinking for years about the allocation of intellectual property rights when an AI system creates or helps to create a new work. The proximate cause was Guadamuz's stunning experiments generating images usingMidjourney.

If you try out Midjourney's image-maker via the bot on its Discord server, you quickly find that each detail you add to your prompt adds detail and complexity to the resulting image; an expert at "prompt-craft" can come extraordinarily close to painting with the generation system. Writing prompts to control these generation systems and shape their output is becoming an art in itself, an expertise that will become highly valuable in itself. Guadamuz calls it "AI whispering".

Guadamuz touches on this in a June 2022 blog posting, in which he asks about the societal impact of being able to produce sophisticated essays, artworks, melodies, or software code based on a few prompts. The best human creators will still be the crucial element - I don't care how good you are at writing prompts, unless you're the human known as Vince Gilligan you+generator are not going to produce Breaking Bad or Better Call Saul. However, generation systems *might*, as Guadamuz says, produce material that's good-enough for many contexts, given that it''s free (ish).

More recently, Guadamuz considers the subject he and Edwards were mulling on Twitter: the ownership of copyright in generated images. Guadamuz had been reading the generators' terms and conditions. OpenAI, owner of DALL-E, specifies that users assign the copyright in all "Generations" its system produces, which it then places in the public domain whilegranting users a permanent license to do whatever they want with the Generations their prompts inspire. Midjourney takes the opposite approach: the user owns the generated image, and licenses it back to Midjourney.

What Guardamuz found notable was the trend toward assuming that generated images are subject to copyright, even though lawyers have argued that they can't be and fall into the public domain. Earlier this year, the US Copyright Office has rejected a request to allow an AI copyright a work. The UK is an outlier, awarding copyright in computer-generated works to the "person by whom the arrangements necessary for the creation of the work are undertaken". This is ambiguous: is that person the user who wrote the prompt or the programmers who trained the model and wrote the code?

Much of the discussion evolved around how that copyright might be divided up. Should it be shared between the user and the company that owns the generating tool? We don't assign copyright in the words we write to our pens or word processors; but as Edwards suggested, the generator tool is more like an artist for hire than a pen. Of course, if you hire a human artist to create an image for you, contract terms specify who owns the copyright. If it's a work made for hire, the artist retains no further interest.

So whatever copyright lawyers say, the companies who produce and own these systems are setting the norms as part of choosing their business model. The business of selling today's most sophisticated cameras derives from an industry that grew up selling physical objects. In a more recent age, they might have grown up selling software add-on tools on physical media. Today, they may sell subscriptions and tiers of functionality. Nonetheless, if a company's leaders come to believe there is potential for a low-cost revenue stream of royalties for reusing generated images, it will go for it. Corbis and Getty have already pioneered automated copyright enforcement.

For now, these terms and conditions aren't about developing legal theory; the companies just don't want to get sued. These are cover-your-ass exercises, like privacy policies.

Illustrations: Grey heron hanging out by the Thames in spring 2021.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


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