Fjeld patiently walked me through several concepts that helped me to better understand how law interacts with the new AI-generated works. Like me, Fjeld believes that all the talk about whether machines deserve copyright is overblown and distracts from real issues surrounding increased complexity of human attribution. Unlike me, she can explain the reasons why and the implications within our legal system. Fjeld explains:
Mostly the question that gets asked is, “Will AIs get smart enough that they can own their own copyright?” To me that is not that interesting because I think AGI (artificial general intelligence) is a ways out. If we get AGIs and we decide to give them legal personhood the way we give to humans and corporations, then yeah, they can have copyright, and if we decide not to do that, then no, they can’t, end of question.
In the meantime, what we really have are sophisticated, interesting tools that raise a bunch of questions because of the humans involved in collaboration making stuff with them. So we get these complicated little knots. But they are not complicated on a grand philosophical level, like, “Can this piece of software own copyright?” They are just complicated on the level of which of these people involved do [own copyright], and what parts of it.
I asked Jessica what the legal implications were in the GANbreeder incident. Disclaimer: Alexander is a past client of Jessica’s, but she is not currently representing him in relation to the GANbreeder incident.
It is a fascinating question. I have tooled around a little bit with GANbreeder myself, so I can understand it. One thing that is important to note is that copyright protects original expressions that are fixed. So “original,” “fixed,” and “expression” are the key terms here.
Something has to be new, and obviously, much of what is on GANbreeder is. Part of what makes it an exciting website is you get some of these really unfamiliar feelings - sometimes eerie, sometimes funny.
Then the next word we learned about is “expression.” Copyright does not protect ideas; it only protects particular expressions of those ideas. So if someone said I had the idea the put into GANbreeder “dog, mountains, and shell,” and I got an image that was similar to the one that someone else is now using, that is not protectable. The exact image, maybe; but a very similar one, no. And something that is very interesting about GANbreeder, as I was tinkering with it, if you have it create a child on the scale from similar to different, if you say to make it very similar, a lot of the children images that come out are very, very similar. There may be individual pixels or a slight shift in the orientation, but at a casual glimpse, you wouldn’t even necessarily see [the difference].
It’s interesting especially because of the timing of when Alex took these images off, when all the works on GANbreeder were unsigned because there were no accounts. It’s a little hard to say. If you were thinking about pursuing an infringement case, you would really have to prove the exact image had been copied rather than a similar idea where, say, one is orange and one is red.
I asked Fjeld how different a work had to be to be considered original.
In GANbreeder, if you keep making tiny changes, eventually you are going to get something that does have what we would call “originality” in copyright. But it is really hard to say when that happens. And in a lawsuit, it will just be a fact-specific inquiry: Is this the same or is it not? And we have this concept of derivative works for works that are very similar. It can be an infringement to make something that is extraordinarily similar, but not just a mere reproduction.
I asked Fjeld if it mattered that Joel Simon’s intention for GANbreeder users was to build upon each other’s existing works. Wasn’t Reben simply using the tool as intended? It turns out there is a thing called an “implied license.” Fjeld explains:
The other piece around how GANbreeder encourages folks to draw on other people’s work I think brings up another interesting question, which is that it’s largely settled law, particularly in the Ninth Circuit in the U.S., that you can grant a non-exclusive license to use your work in an implied way, so it doesn’t have to be explicit.
U.S. copyright law does require that if you are going to dispose of your right to the work - so either going to give an exclusive license to someone else, or if you are going to sell your copyright - you have to have a writing. But for implied license, a non-implicit license, you don’t have to have a writing. And at least some courts upheld that it can just be implied - you don’t even have to have a conversation about it.
And when I look at GANbreeder, because of the way it’s set up, because of the way the whole system is architected, it gives you an image created by someone else and encourages you to iterate on it. It certainly looks to me like there is an implied license to do that within the context of the site. Anyone who is creating work there understands that other people are going to use it as a basis to make their own work.
Now, when courts look for implied licenses, it is again a fact-specific inquiry. I think with regard to what Alex did, the question is, did people understand that part of the implied license they were given, not just that you can monkey around with it in the context of the GANbreeder app or you can also integrate it into this other system and have it painted by anonymous painters in China and show it in a gallery. They might not have anticipated that, and that’s probably where the issue comes in.
There was an implied license to do something, but the scope of that implied license wasn’t totally clear. Then that is complicated because it is a site that is architected with a thousand models and images in it, so you are essentially navigating the points in a multi-dimensional space created by that number of models and can have any combination of those thousand images. But it creates a lot of very similar images.
So the combination of the fact that the scope of the implied license wasn’t very clear and the fact that people may have an attachment to their ideas or individual expressions and then may see a very similar one… it is my understanding that Alex’s project shouldn’t have directly just reproduced anyone else’s; it would have started with someone else’s, and then he tweaked it based on his body signals.
I wondered why Reben’s work would not be considered derivative and asked Fjeld if she thought it could legally be considered so.
I would say that yes, there is an argument that Alex’s works could be considered derivative of existing works on the GANbreeder website. There remains the question of the implied license because the derivative work is a copyright infringement, but if the use is licensed, then there is no infringement.
There is also a question of what the damages would actually be, because in copyright, you can get statutory damages if you register your work in a narrow window around its creation or before the infringement happens. If you don’t do that - and to my knowledge, none of the GANbreeder images have been registered - then what you get is actual damages. And it’s not totally clear what the damages would be for folks that anonymously created images on a website and then later found that someone had them painted and displayed them in a gallery.
*I also don’t know if there have been any sales. There is the image that Alex used and whether there is a derivative work in that process, and then he takes this further step and has them painted into oil paintings, which, again, I think is another tweak. So there is a series of manipulations of the underlying content.
*Note: There have not been any sales.
I asked Jessica if she thought these “manipulations” by Reben pointed towards “fair use” (a term I had heard in the past but did not fully understand).
Yes, they do steer me more to think about fair use. As I have heard Alex presenting on this work, he really emphasized that for him, it really isn’t about the outputs; they are not the artwork at all. For him, the artwork is the process by which he had trained this series of systems to produce the artwork, test them against his own preferences, to title them, etc. For him, the interesting thing is the process by which he tried to design a bunch of algorithms to take himself as far as possible out of the creation process. The expression of them is that he ends up putting his name on painted images in a gallery. But even putting his name on them is a little complicated in regards of what he was thinking about in regards to the artwork.
When we think about fair use, one of the main factors that courts consider is how transformative the use is. And I do think there is a strong argument here that because the underlying theme of the work, we could think about it as fair use because we want to incentivize this kind of exploration of the space. The way that Alex talks about it, there is an argument that, ethically speaking, it should be clearer that despite the paintings being up at a show with his name on them, he doesn’t really think of himself as the author of them in a certain way. The use is transformative because it is making this point of how far can we push toward algorithmic authorship.
You could think about the Richard Prince vs. Patrick Cariou case. They are both fine art photographers, but Prince is a conceptual artist, an “appropriation artist,” he calls himself, and Cariou is a more traditional fine art photographer.