The New AI Art Copyright Ruling

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The Problem with AI Art Copyright

The swift adoption of AI generated art has led to outcry among artists. But what rights do artists have to protect their IP and artworks, and how will AI art copyright change the landscape of the art industry?

We all knew it was coming. Asimov predicted it before AI was a glint in Deep Blue’s eye. Machines can now create their own art seemingly out of nowhere. Except it’s not out of nowhere. And therein lies the problem. AI can only scrape the work of original artists from the internet to learn from. Begging the question: Can AI art ever really be considered real art?

Personally, I don’t have a problem with AI as a new medium, in the same way that I don’t have a problem with NFTs (other than their impact on the environment). I might not like them, but I just choose not to get involved. As a traditional artist, I had no problem with the rise of digital art, despite the fact that it takes a fraction of the time to create digital art, it’s less messy and, frankly, it’s far far easier to master. And before anyone jumps down my throat, I embraced the medium of Procreate last year during a bout of kidney stones when I couldn’t sit in the studio to work. My first attempt was to recreate an original piece that I had painted a few years before. It took me half the time and looks twice as smooth. Of the two, I actually prefer the traditional artwork, because I like to see paint strokes and that rougher look. It’s one of the reasons I’ve never moved towards photographic art. 

Blue Moon - Digital Vs Traditional Media

A Brief History of Controversial Media

A lot of traditional artists railed against digital art, though, and many still do. And with good reason, really – when you’ve spent years and years practising how to paint light and perspective from life, it can be frustrating to see some young thing tracing a photograph and colour picking to get the same results in a fraction of the time. I get it. But there’s nothing anyone can do about it. It’s here, it’s valid and there are a lot of exceptional digital artists. My partner, Tom Bramall, included. His work is highly detailed and pretty much all done from memory. I am constantly in awe of what he produces. Digital art is a medium in its own right now. 

Before digital art was the problem du jour, there was the digital camera. Traditional photographers lashed out at this new form of photography, claiming it would be the death of the film-based camera as we knew it, with amateur photographers snapping shots right left and centre and claiming that they were worthy of the same respect as film.

And before the digital camera, was the camera obscura. Traditional artists felt that their work was being undermined by the magic box that could create an exact replica of people. What would happen to portraiture?! Abstract art, is the answer. Experimentation, freedom of expression, mind-bending surrealism. 

New media, like AI, don’t necessarily negate previous artforms. There are still plenty of photographic artists around, despite the fact that we all have access to cameras at all times now. The camera obscura is considered a medium in its own right. Paintings by traditional artists have been largely unaffected by the rise of digital.

So I don’t think there’s any point in fighting AI created art. It’s here. It’s happening. It was always going to happen. It will continue to happen and, indeed, improve and piss people off.

Camera Obscura

AI Art Copyright

However, there is a different issue with copyright here than there ever has been before. In the past, there has been a clear owner of the eyes, hands and brain behind the final artwork. With AI, a person (talent and skill level unknown) feeds a prompt into a machine that’s been built and programmed usually by a different person and then that machine takes the art it finds online and creates something new out of it. So… who… does it belong to?

As far as I’m concerned, if you haven’t created anything, you do not deserve the credit. Typing “Fairy Jack Sparrow” into an AI and reaping the results of that machine’s findings does not make you an artist. It’s not even a good art brief. So you can’t credit the ingenuity of the commission. And that’s what it is – asking something or someone else to create something for you is a commission. People who have commissioned me to create art for them don’t get the credit for my work – that would be preposterous. No matter how interesting the idea. If I’m working from a photograph I’ve been given, then there’s merit in the original photograph, but that’s a medium in its own right and it has been given to me to create an entirely new thing out of.

AIs Are Scraping the Artwork of Current Artists

The problem is that these AI “artists” haven’t given it that much thought. Haven’t spent time learning or researching. And don’t seem to care that, in a lot of cases, the AI is quite literally plagiarising the work of someone who has spent their time, money, energy and resources on creating the work in the first place. It’s theft. Simple as that.

And that is absolutely something that everyone should be up in arms about.

The Difference Between Sampling Music and AI Art

I’ve heard people argue that what the AIs are doing is sampling the art of other artists. A technique people have been using for centuries to compose pieces of music. And there is a very big difference here: if you sample music, you must get permission or you will be sued. Big time. In a lot of cases, you also need to pay for the rights to use that sample. If AI was creating music from samples it had scraped from the web, there would be all hell to pay. So why are visual artists not afforded those same rights?

But All Artists Steal a Little Bit

Yes, it’s true. We do. I have quite literally taken elements of other artists’ work to incorporate into my own as tributes.

Perception - My Mona Lisa Tribute

However, there is a difference between creating something new from a classical piece of art (which I always credit, by the way) and smushing some images together with no real thought process and claiming it as your work. 

As a human being, I have thought in depth about which elements of the original artwork I would like to represent and where my work deviates from that artwork. I have spent hours finding complementary colours, developing images and composing entirely new pieces. I… a human being with free will. I haven’t willy-nilly picked original images that belong to other (living!) artists and copied elements directly from them. It would feel empty, even if it wasn’t clearly stolen.

The AI is Just Learning

AIs might be learning this way. And don’t all artists? I’ve done my fair share of master studies. However, artists doing master studies don’t claim that work as their own. That’s highly illegal. It would be considered forgery.

If that is how AI is learning, that’s fine. But as the human behind the AI, you have zero rights to that artwork. It is not yours! And it should be credited to the artists of the art that is being used as a learning tool. If the work is from classical art, it should be made obvious which artists were the influence. Where the work is from living artists, permission needs to be granted before the AI should be even allowed to use that work. And if permission is granted, the artists who provided the work should be clearly credited. All of this seems so obvious that it’s absurd we even have to go through this plagiarism in the first place.

Photo Credit: Mason McCall

The New Ruling on AI Art Copyright

A new ruling in the US has stated that AI art lacks the human authorship necessary for its art to be copyrighted. This is off the back of actual copyright requests from individuals taking advantage of the platforms’ outputs. I find it hard to believe that real people think that they are entitled to claim these things as their own, honestly.

This isn’t to say that AI art won’t have its own sort of copyright laws in the future. But currently, copyright is strictly for humans, and in its current state, AI is breaching the rights of human artists and therefore doesn’t qualify. Maybe some sort of patent could be developed for AI art, but as it stands in its current state, it’s not even where it needs to be for that to happen.

AI Art is Here to Stay

Like it or not, AI art isn’t going anywhere and better protections for living artists need to be put in place to ensure that AI is just another medium. It shouldn’t be allowed to literally steal art from the people who created the work. And the fact that this even needs saying highlights a massive issue with how people view visual artists in the first place. 

When you pay artists, you are paying for materials, overheads and our time, yes. But as well as that, you are paying us for years and years of hard work and practice. A machine cannot offer you that – all it can do is exploit the work of others and create strangely crisp facsimiles. With wonky weird eyes. And don’t even get me started on the impossible body standards.

In conclusion, the art world waits with bated breath while we adjust to this new addition. But to people who think stealing art is acceptable, I hope you get what’s coming to you

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