this post was submitted on 29 Dec 2023
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But it’s not reposting copyrighted images. It is analyzing them, possibly a long time ago, then using complex math and statistics to learn how to make new images when requested, on the fly. It’s an automated version of the way humans learn how to make art or take pictures. If it happens to produce Mario very closely it is because it learned very well.
That is why this isn’t cut and dry. And why it might be good to think of it as derivative works. I don’t think you will be able to nail down this idea of imagination and inspiration. It’s just not that straight forward.
Edit: Also, the generator is not pumping out copyrighted images intentionally. It is waiting for a prompt from a user. Who will then go and post it somewhere. If it is too close to Mario, it is that human user who has violated copyrights. They only used the generator as a tool. I feel like that is very relevant.
That's the ideal and how it's advertised, but in reality they retain a lot more of the original copies than most people think, in addition to the fact that the output is often not sufficiently "transformative" in copyright terms to avoid being considered a derivative work still needing a copyright license.
In your Mario example, the character as such is unique enough that it has its own copyright and you can't use images of that character commercially without a license regardless of how the image was created. If it's recognizable as Mario then you copied the design as far as a judge would be concerned. If you asked a human to draw it then it would be equally infringing.
A human doesn't even need to ask for a copyrighted work for it to generate infringing outputs.
In the case of Mario, it's not literally copyright for the most part, but other IP protections such as trademarks, logos, etc.
I don't think intention or prompting matters much. If you type "Mario movie" into the YouTube search box and it shows you the Mario movie, YouTube needs to license that material, even if you explicitly ask it to do so and even if you don't redistribute it. An AI tool is in a similar situation, you still need to license content if you're making a tool.