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You're basically arguing that you can't copyright every hair on the head of your model. And you're probably right!
Imagine I published a photo that was exactly like yours, except I edited the model's hair color. Even though my image is not identical to yours, it has the same model, pose, lighting, framing, etc. These were all things that you intentionally controlled. You could argue on that basis that I violated your copyright.
Now imagine I published a photo with a different model, different lighting, different framing, different background, different everything except, by chance, the hair on my model's cheek matched the hair on yours. If you admit that you didn't even try to control that, you would have a much harder time proving I violated your copyright.
Likewise, suppose my painting of a flower vase contained a drop of paint splatter that by chance matched the fine texture of a drop on a Pollock painting. Pretty unlikely that would be a copyright violation.
To the extent that an artist gives up control of their work, they lose the ability to copyright it. The extreme case is the monkey selfie, where the artist (initially) admitted they had no control over the output and thus no basis for copyright.
No, I'm arguing counter to your point about "control" being the lynchpin to copyrighting art. Control has nothing to do with it. What makes art is intent. I can throw paint at a wall all day, but if I'm only doing it because I don't like the wall, then it isn't art (though I accept that someone else may see it as art, but that's a different story...). When I have intent--when I throw the paint with a purpose to create something that is a reflection of some idea I have--then it becomes art. The same goes for AI generated art. I can type words into Midjourney and pictures come out. These pictures can be "artistic" but they are meaningless if there was no intent behind them. I, like the artist attempting to copyright their AI art, have created AI art with intent and purpose. We have created something of our own will as a reflection of an idea. How much control we have over the product is unimportant, what is important is that the final piece is a representation of our desire to convey something to you in a visual medium.
You may not like it, but legally copyright is not based on intent. That's why if a couple hired you with the intent to shoot their wedding then they do not have copyright over your work. As a photographer you control the photos and thus retain copyright even when the intent of your photos is dictated by your employer.
The functional relationship between the employer and the photographer is basically the same as the relationship between the AI user and the AI.
You are conflating intent and ownership. If I shoot a wedding, I have intent for every picture (this is a fucking lie, weddings are boring, even though everyone thinks theirs is unique, I space out until the ceremony, regardless of how adorable your niece is as the flower girl). I am creating that art with intent. Whether I own it or not is per contract, and if I'm shooting a wedding, then I don't own the pictures because the contract I have with the wedding party states their complete ownership of the images after I take them. In that way, I have created art with intent, and should I desire to copyright it, then I would have to make an adjustment to the contract, though I do have a clause that with permission I will retain some photographs for advertisement, but they must be cleared with the wedding party.
How is your employer's contribution to your photo shoot fundamentally different from your contribution to an AI generated work?
The difference is I am the one with the intent in both scenarios, and the employer and AI aren't. In both cases, I control the art through my intentions. At the wedding, I have my own intent when I take a photo. That intent is the same intent that I have when I create generative art. I control the app like I would the camera. If I don't like a shot, I throw it away and try again. The AI is the tool, much like my camera. When I take a photo, just because my camera has more knobs and buttons than the web-app I make generative art with, doesn't make it any more real than the generative art. A tool is a tool, and art is art. If the web-app becomes sentient, and starts to prompt itself for art and pay for the server time with my credit hours, then we can have a talk about intent and ownership again :)
Why do you say your employer has no intent? They hired you with a particular product in mind after all. And they can do everything that you do with an AI: evaluate the results and tell you to try again.
What, specifically, do you do with an AI that an employer cannot do with a photographer?
It depends on who is creating the art. If I simply go where I am told, take exactly the pictures that I am told to take, and then hand them over to the employer, I am little more than a tripod that can work a shutter. I'm not the one with the intent, my employer is, and in that case I would be the tool (and my exes agree). In that case, my employer has effectively made the art, I have had no input in the process, and am for all intents and purposes no different than the AI. However, when I start to force my will upon the photographs, when I stage the lighting and set everything the way that I wish, then I am the one with intent, and I have created the art, and the camera is the only tool in the bag. That is how the art shifts; with the intent. Every pencil's lead will have a grain specific to it, like a fingerprint, however, that pencil has no control over the art that it creates. It is a tool. If the AI, the pencil, or the photographer start to exert their own will over the art, then it becomes their own. If they take suggestion from someone else, like an employer, then a contract and shared creative ownership can be argued, but that is something between two sentient life forms. A tool cannot own the art. I do not credit my camera for the shots I take.
This sounds like a very easy test for an employer to pass. They force their will simply by telling you what to shoot.
But I gather that you won't give them ownership quite so easily, they need to control every aspect of how you take the photos and thus reduce you to a "tripod".
You can't have two standards. Which is it? If merely exerting will is enough, then employers always own what photographers produce. If some degree of independence beyond a tripod allows the photographer to claim ownership, then AI users can't claim ownership.
Can you articulate a single principle that is valid for both employers and AI users?
I actually covered this exact point:
When two sentient life forms collaborate to create art, then they share the ownership. When an employer tells me what photographs to take, they have a part in the creative process and have placed their intent into the work. Now, 99% of the time, when an employer asks for something, and I do the work, they don't take the credit for it. They defer to me and understand that my knowledge has given their idea form, and because of my intent, their intent has been realised. However, there can be arguments made for shared ownership if they have given me input as to what they want. I'll even praise someone who has done some research beforehand and said something like, "When I was here last week, at 4pm, the sun shone through here beautifully, and we'd like to get some photos with that." That is a shared creative experience, and the intent of both parties creates the art, and so both parties have some ownership. You can also look at this through the lens of the music industry, where a performer may not write their own songs, and both the artist and the songwriter share credit for the song (though usually not equally).
Now, when I give instructions to an AI on what art I would like to see, that AI has no input in the process, it simply pulls from its dataset and applies a randomly generated seed to create the image. It exerts no will of its own, and so no intent of its own is wielded over the art, as it has neither. It is no more willful than the grain of the pencil lead.
I think your approach would not work in practice. The test is not how it plays out when people are cooperating, but what happens when there is a dispute. And if the principle is "providing some input gives ownership" then the photographer, photographer's assistant, agent, employer, and employer's ex-wife will all sue each other over ownership.
In the music industry, you need to actually perform a piece to claim performance credit or specify the verses of a song that you personally wrote to claim writing credit.
I mean, that's any artistic industry, really. Movies aren't solely made by the director, music isn't solely made by the singer. Sometimes those people can be the sole creator of the art, but when they aren't, credit is shared.
Agreed, in which case you would get performance credit and everyone else will get credit for what their contributed. No one gives credit to the microphone cord, though. No one is crediting the studio lights. They aren't sentient. Their intent isn't exerted over the art.
Movies aren't made solely by the director, but certain requirements must be met before one can claim copyright. Hundreds of people can offer their input but not be eligible for copyright, because offering input is not sufficient. There must be some direct control over an element of the output, whether that's the cinematography, writing, or soundtrack.
It's true that inanimate objects can't claim copyright but that does not remove the requirement for direct control. If no human has direct control then the rights revert to public domain, for example no human has direct control of a sunset so a sunset cannot be copyrighted.
Right, and hundreds of people may have programmed the LLM, but they don't get credit for the art.
A human does have direct control, though. I control the keywords. I control the random seed if I don't want it to be random. In the case of MidJourney, I can prompt with an image to control the character, style, and over-all image composition. I have a lot of control over what comes out. Just because I don't control exactly where each pixel goes doesn't mean my intent isn't exerted over the final piece, just like I can't control every bristle on a paintbrush.
You directly control every pixel on your paintbrush, whether you want to or not. Who else controls it? It can only move when your mouse moves, which can only move when you cause your hand to move.
In contrast, you have some control over MidJourney output, but not direct control. Something could appear in the output that you did not cause.
I meant a physical paintbrush, not a digital one. A physical one is effected by many outside forces I have no control over. As far as a digital brush, you are correct, I can control exactly where it goes. If we are going to argue the merits of digital and analogue art and whether one has more value than the other, I think I'll bow out, because even I'm not brave enough to find a soapbox to stand on in that one.
But that would be controlled by something, likely something that has been programmed into it. In dealing with computers, the concept of "random" isn't real. Everything is deterministic. Whether I am the one that forced the output, or it was something that was programmed, it is not the intent of the program, because the program has no intent.
To the extent that you do not control a physical paintbrush, you lose your claim to copyright.
If you left a wet brush on a piece of paper and came back the next day to find the wind had blown it across the paper leaving a paint streak, that paint streak could not be copyrighted. You fully relinquished control of the brush to the wind.
Arguably the same is true of the wind. So to claim copyright, you cannot relinquish control to an inanimate object. Not to the wind, not to an AI.
I wouldn't claim to have created that. I didn't exert my intent. However, if my intent were to show the art of the natural world by allowing the wind to paint on a canvas, that would qualify as art, and could be copyrighted.
You can, if it is your intent. I just finished arguing this point on another part of this thread, but Jackson Pollock and Damien Hirst are two examples of this. They both relinquish their tools to "randomness" and have had their works copyrighted. Control doesn't matter. Intent matters.