00:00:01Legal Issues With AI and Photography
00:09:00Copyright and AI in Photography
00:18:52Gratitude and Sponsor Promotion in Podcast
ABOUT THIS EPISODE
Ready for some legal brain teasers? Picture this: a monkey takes a selfie and the image goes viral. Who owns the copyright? And what about AI-generated images, who can claim authorship? Meet our expert guest, Aaron, who navigates us through the entangled web of legal issues in the AI and photography world. We dive into the challenges of proving infringement with AI-generated images and the importance of claiming authorship. We untangle the knots between artistic creativity and AI assistance, questioning the complexities of ownership and copyright claims.
As we zoom into the second part of our conversation, we focus on a peculiar legal case involving a monkey's self-portrait. This unusual instance prompts us to question who owns the copyright when a non-human entity is behind the lens. We explore the intersection of AI, copyright and the right to derivative works, acknowledging the broader challenges of reconciling copyright law with the constantly evolving technology. Join us as we delve deeper into these thought-provoking issues, and provide you with a clearer picture of the changing landscape of AI in photography.
English
United States
SHOW NOTES 🔗
TRANSCRIPT 🔗
WEBVTT
00:00:01.102 --> 00:00:05.371
Hey there, thanks for tuning in to Something New Every Week with your host, me, Jason Group.
00:00:05.371 --> 00:00:12.289
Each week, I'm going to give you something new that's happening in our photographic world just some great conversations with my friends and what's going on right now.
00:00:12.289 --> 00:00:14.946
Something New Every Week is sponsored by Miller's Lab.
00:00:14.946 --> 00:00:19.791
Miller's Professional Imaging is the largest professional lab organization in the United States.
00:00:19.791 --> 00:00:26.545
They provide professional prints and press products for professional photographers in all 50 states and Canada, and they're just a great company.
00:00:26.545 --> 00:00:29.608
If you don't know them, go check them out, MillersLabcom.
00:00:29.608 --> 00:00:33.728
And we're back.
00:00:36.223 --> 00:00:37.829
That just gave me the place to pause that.
00:00:37.829 --> 00:00:46.439
So if you were listening to the last episode, we were talking about Lynn Goldspitz's case against the Andy Warhol Foundation.
00:00:46.439 --> 00:01:09.121
It was super interesting and thank you for all of that information, and I know that Jackie has some other questions, but I really wanted to just get right into the AI stuff and the stuff that you talked about, because I think that is the most important thing that's happening to us right now Real time.
00:01:09.121 --> 00:01:21.543
We're not all famous Lynn Goldspitz photographers, but this AI is a brand new thing and I don't know if you want to follow up on that question, jackie, before we give Aaron a chance to talk.
00:01:21.543 --> 00:01:24.447
But yeah, I want to give you a chance as well.
00:01:25.799 --> 00:01:31.112
I just wanted to explore what are the biggest issues right now with AI and photographers.
00:01:31.112 --> 00:01:42.647
I know they're concerned about a lot of different things in the copyright, of course, but who are photographers coming to you with their concerns, or have you had a case yet about that?
00:01:44.420 --> 00:01:46.507
I had a couple issues with it.
00:01:46.507 --> 00:01:50.448
There's a couple different areas where legal issues are popping up.
00:01:50.448 --> 00:02:03.430
One of them is using AI technology using other people's photos to build on their AI and whether that's infringement.
00:02:03.430 --> 00:02:10.085
So they're kind of scraping the internet of photos and then using that to improve their AI technology.
00:02:10.699 --> 00:02:11.524
So that's one area.
00:02:12.199 --> 00:02:17.308
Another area is for photographers who use AI.
00:02:17.308 --> 00:02:25.189
How much are they reliant on it and how much are they changing their photo from the original photo?
00:02:25.189 --> 00:02:45.127
So if they're kind of using it more as an editing tool, but then some photographers and some famous Instagrammers and things like that, they are creating images purely based off of AI and the question then becomes do they own the copyright to that?
00:02:45.127 --> 00:02:55.643
If they didn't make it, really If the computer, I mean, they may have put it in an input and now popped an image Do they own?
00:02:55.643 --> 00:02:57.168
Do they have ownership over that?
00:02:57.168 --> 00:02:59.146
Or is it just kind of free for everyone?
00:02:59.146 --> 00:03:00.444
Is it part of the public domain?
00:03:00.444 --> 00:03:05.526
So those are kind of some of the areas, that where AI has been affecting photography.
00:03:10.560 --> 00:03:18.985
What would your advice be to a photographer who had a concern that they had an image that was then manipulated or like?
00:03:18.985 --> 00:03:23.683
I don't know if stolen is the right word, but I don't know what you would term it.
00:03:23.683 --> 00:03:25.201
Yeah, I mean.
00:03:25.582 --> 00:03:28.110
So AI technologies.
00:03:28.110 --> 00:03:37.866
It's hard to figure out how to know everybody's doing something kind of different, but there are cases where people are accusing certain AI companies of using previous works.
00:03:37.866 --> 00:03:41.628
So you're going to have to show that somehow.
00:03:41.628 --> 00:03:52.021
And that's a difficult thing to do is to show how, because what's happening is these AI generated images.
00:03:52.021 --> 00:03:57.588
Nothing is the same, so it's I mean, it's completely everything, everything that's.
00:03:57.588 --> 00:03:59.052
You know it's like a snowflake.
00:03:59.052 --> 00:03:59.602
You know everything's.
00:03:59.602 --> 00:04:00.365
Everyone is different.
00:04:01.439 --> 00:04:04.629
So they may have based it off of someone else's image, but it's a pretty hard thing to prove.
00:04:04.629 --> 00:04:13.412
But I think the biggest, the biggest issue is when the top developers go to register their works, they have to claim on the copyright registration.
00:04:13.412 --> 00:04:15.487
Are they the author?
00:04:15.487 --> 00:04:24.665
And I think this question of authorship who created this image is becoming a real problem, and it's not something that has been really dealt with right now.
00:04:26.564 --> 00:04:34.086
There are a couple of cases, but there's not really any good precedents out there about OK, how much do I need to rely on?
00:04:34.086 --> 00:04:36.673
Can I and can't I rely on AI?
00:04:36.673 --> 00:04:40.052
And when does that become no longer my photo?
00:04:40.052 --> 00:04:42.514
So, in a sense, when does it transform in this issue?
00:04:42.514 --> 00:05:15.791
And so where courts have come out on this is what the case is, a fact-specific analysis, and what they want to do is they want to look at OK, it's OK to use AI technology software for your editing, but are you the one making and this is a question that photographers should ask them who is making the artistic determinations in the final product of the image?
00:05:15.791 --> 00:05:16.694
Who made those?
00:05:16.694 --> 00:05:20.435
So I tell the AI, I'll turn the background green.
00:05:20.435 --> 00:05:22.892
Ok, I made that artistic decision.
00:05:22.892 --> 00:05:28.634
If I say OK, I want to add more of this type of trees.
00:05:29.576 --> 00:05:35.771
maybe I did it, but if I said AI, clean up this photo, I mean you could be as broad as that.
00:05:35.771 --> 00:05:42.869
Make this, put in a sunset of any color, do your thing.
00:05:42.869 --> 00:05:45.247
Does it really?
00:05:45.247 --> 00:05:46.009
Is it your throw?
00:05:46.050 --> 00:05:46.572
at the end of it.
00:05:46.805 --> 00:05:48.629
And that's it's really kind of.
00:05:48.629 --> 00:06:12.716
I think a lot of times what's going to happen is defense attorneys for copyright infringement cases where they get a hint of the fact that this image could have been partially generated by AI, they might say they might make the argument that no one really owns that image, that it wasn't authored by the individual.
00:06:12.716 --> 00:06:21.956
It was authored by an AI software, and AI software can't own copyrights.
00:06:21.956 --> 00:06:23.790
People own copyrights.
00:06:23.790 --> 00:06:26.853
So what happens in that case is it becomes.
00:06:26.853 --> 00:06:38.732
You could argue that then an image becomes public domain, and what I mean by public domain is that the image doesn't have an owner, it doesn't have a copyright to it and it's free for everyone to use.
00:06:41.584 --> 00:06:45.536
So I have so many questions and so long.
00:06:45.536 --> 00:07:17.435
So there are artists now on Instagram especially, that are using I'm blanking on these programs now, but are creating this artwork with prompts and selling this work, and is there any precedent at this point that they actually it is their work or because this program created it Like?
00:07:17.435 --> 00:07:22.564
Can I register that copyright if it's created by mid-journey or you know, like the others?
00:07:24.456 --> 00:07:30.521
And so far the copyright office has said no, you can't register it, you're not the author and that's where this had come out.
00:07:30.694 --> 00:07:47.646
That was it's a good case is someone created an image, I think on mid-journey, and they just put in one sort of simple prompt and everything was generated, and then they wanted to copyright it, and the person they said who's the author?
00:07:47.646 --> 00:07:52.757
And the person wrote the person who created it is the.
00:07:52.757 --> 00:07:56.440
It was the AI software that was used, but they're the copyright owner.
00:07:56.440 --> 00:08:06.221
And the copyright office said well, no, the author has to be a person in order for there to be a copyright attached to it, and the AI software is not a person.
00:08:06.221 --> 00:08:06.923
And there you have it.
00:08:06.923 --> 00:08:08.541
So that's where that's so far.
00:08:08.541 --> 00:08:09.560
That's where they're coming out at.
00:08:09.654 --> 00:08:14.843
So what that means though see, it's funny you know, like as a human nature instinct.
00:08:14.843 --> 00:08:24.000
When we create something or when it comes out of our computer, you know we think we own it right, and you might own, like, the physical nature of it, like if you've made a print of it.
00:08:24.000 --> 00:08:26.502
No one can take that physical piece of property from you.
00:08:26.502 --> 00:08:41.203
But if you decided to take that, take that, that image and put it online and someone you know copy and pasted it, you may not have any rights to stop them because you don't have a copyright.
00:08:41.203 --> 00:08:45.822
It's likely you don't have a copyright in it, even though you may be made a general prompt.
00:08:45.822 --> 00:08:54.785
But if you made no other decisions than just kind of putting in a general prompt of what you wanted the majority to spit out, then that's it.
00:08:54.785 --> 00:08:58.745
It's likely you don't got anything.
00:08:58.745 --> 00:09:10.778
And that's where, because it's a really tough you know, there was a case about this with I think it was a monkey or a gorilla or something that took a photo.
00:09:10.778 --> 00:09:13.025
Use someone's camera to take a photo.
00:09:13.274 --> 00:09:14.259
Yeah, you talked about this.
00:09:15.154 --> 00:09:19.000
Yeah, and that's kind of the a lot of cases that they this case has relied on with.
00:09:19.000 --> 00:09:27.244
This is because the court grappled with okay, well, who can own a copyright, you know, and they're like well, animals can't have copyright.
00:09:27.244 --> 00:09:33.316
I mean, you know, can't have copyright, so that's a which I think is unfair, that's where the decision is yeah.
00:09:34.457 --> 00:09:40.395
So we don't think it's possible for using it, though I think you know.
00:09:40.395 --> 00:09:52.322
I think people are using it for editing, which is very helpful, because traditional editing knows you would call the image, you go through each one yourself, then you would do it, make your decisions yourself.
00:09:52.322 --> 00:10:05.320
Now you can, I'm sure, do this by just putting in a general you know, demand request and then having the AI just go through everything but a lot of the changes.
00:10:05.399 --> 00:10:11.384
but remember so this is something to keep in mind is that photographers have rights to the derivative works.
00:10:11.384 --> 00:10:19.226
So if the work, the final product, is not very different than the original Right.
00:10:19.226 --> 00:10:28.438
So like, let's say, a photographer removed, you know, had the AI software remove blemishes from someone's face, but they did it, you know, the AI software did it automatically.
00:10:28.438 --> 00:10:33.701
The person, the photographer, just kind of put in a prompt and then they went through all the images.
00:10:33.701 --> 00:10:41.330
The photographer has a right, any work that is substantially similar to the original.
00:10:41.330 --> 00:10:49.903
So that's why you know a photo that becomes a painting, or you know a work of art that someone takes a photograph of.
00:10:49.903 --> 00:10:53.330
They have rights to those derivative works as well.
00:10:53.330 --> 00:11:00.309
So that's why if you change a photo to black and white, you don't need to register the color image and the black and white image.
00:11:01.152 --> 00:11:07.003
You just need to register one of, because they're substantially similar to the original and have a right to make it derivative work.
00:11:07.003 --> 00:11:09.350
So that's where you're going to be.
00:11:09.350 --> 00:11:18.309
So, with AI, if they're making these decisions, that's really not changing the overall photo itself, just minor changes, then you shouldn't have an issue.
00:11:18.309 --> 00:11:22.836
But I know some photographers that they're actually the only thing they're keeping in.
00:11:22.836 --> 00:11:25.221
There is like the person's head and everything else is.
00:11:25.221 --> 00:11:28.125
You know, a photo has been completely changed.
00:11:28.125 --> 00:11:40.350
Maybe there's a land like a cityscape added in and all sorts of stuff, and so there's a question of okay, well, is that really your photo anymore?
00:11:41.533 --> 00:11:41.653
And.
00:11:41.832 --> 00:11:45.961
I think that those are going to be decisions that are going to be, of course, are just going to have to deal with.
00:11:47.913 --> 00:11:49.658
As they come, they're just not equipped.
00:11:50.490 --> 00:11:58.124
It's crazy because you know the technology, especially that is moving just so fast and so many different issues are popping up left and right.
00:11:58.124 --> 00:12:06.288
I just don't think the copyright law was not written for stuff like this really, and it's going to be really hard.
00:12:06.288 --> 00:12:09.678
It's like trying to fit, you know, around peg into a square hole.
00:12:09.678 --> 00:12:17.903
It's going to be really hard for the courts to reconcile, okay, this whole set of laws with this new technology, how they come out on.
00:12:17.903 --> 00:12:19.354
So we kind of have to wait and see.
00:12:20.509 --> 00:12:26.095
Right and you know I'm curious about is there?
00:12:26.095 --> 00:12:33.442
So if I make this person who made the picture in mid-journey and then wanted to register it, is there a?
00:12:33.442 --> 00:12:33.981
Is there?
00:12:33.981 --> 00:12:38.807
Is there technology that can tell us what it was created with?
00:12:38.807 --> 00:12:41.052
Like, is it the metadata there?
00:12:41.052 --> 00:12:47.938
Or can some that's that same person just say it's my picture and I'm registering in a copyright?
00:12:47.938 --> 00:12:49.823
You're gonna have to prove it.
00:12:49.865 --> 00:12:52.605
Yeah, I mean the, the copyright office.
00:12:52.605 --> 00:12:57.057
There is AI detection software out there which is really popular now.
00:12:57.339 --> 00:13:01.030
You know Cuz, universities and things like that having to use this stuff for people right papers.
00:13:01.030 --> 00:13:16.734
So I don't know how much there is for images, but but regardless, the copyright office doesn't do any sort of due diligence on their part to go and check to see they're not gonna run their stuff through some sort of soft.
00:13:16.734 --> 00:13:18.746
At least for now they're not gonna do that.
00:13:18.746 --> 00:13:20.480
What they are gonna do is they're gonna rely it.
00:13:20.480 --> 00:13:22.845
You know you have to swear under oath.
00:13:22.845 --> 00:13:26.693
You know in the form of like an affidavit, when you register your image right.
00:13:27.520 --> 00:13:30.110
That you are the creator of this image.
00:13:30.110 --> 00:13:36.090
And if you're not the creator, if you're a co-creator, you have to say that and then you have to provide the information of the other co-creator.
00:13:36.090 --> 00:13:48.168
And if it's, if you are registering your image and you're saying that you are the creator, but 90% of that image is done by AI, that is a problem and it's You're likely to get a.
00:13:48.168 --> 00:13:50.940
But the copyright office is not gonna know where this is gonna really come out at.
00:13:50.940 --> 00:13:53.337
Is Is defense attorneys for copyright infringement.
00:13:53.337 --> 00:13:56.995
They're they're gonna really hammer down.
00:13:57.014 --> 00:13:58.039
Did you make this?
00:13:58.039 --> 00:13:59.289
I want to see.
00:13:59.289 --> 00:14:00.499
They're gonna demand and discovery.
00:14:00.499 --> 00:14:09.120
I want to see the raw image and I want to compare the raw image To this font, to this image you registered, and let's just see how different it is.
00:14:09.120 --> 00:14:18.039
And then there, then you know they're gonna want to go into the history of whatever Program you used and I want to, you know, show us the history and how you can't have this final image came out.
00:14:18.039 --> 00:14:19.687
Where did you make the decision?
00:14:19.687 --> 00:14:22.119
It's gonna, they're gonna put people under oath and it's gonna be tough, you know.
00:14:22.119 --> 00:14:34.700
So you may get that final registration, but if you accuse someone of infringement, attorneys are gonna start asking for stuff like this, because it's gonna be more images than not I think are gonna be.
00:14:34.700 --> 00:14:38.674
More Gen are gonna be generated by AI.
00:14:38.674 --> 00:14:39.860
I mean it's just such good.
00:14:39.860 --> 00:14:41.759
You mean that, are you just gonna be like?
00:14:42.400 --> 00:14:42.902
You mean that?
00:14:42.902 --> 00:14:48.474
Are you saying that lawyers are gonna take advantage of this precedent to help them help their clients?
00:14:48.474 --> 00:14:53.067
We lost Aaron, I think.
00:14:54.941 --> 00:14:56.004
You know we're gonna be.
00:14:56.004 --> 00:14:57.750
Yeah, we're gonna take advantage of anything we can.
00:14:57.750 --> 00:15:10.985
You know, I think too it's important that if they do do this to really kind of keep track of you know what changes they made To the but.
00:15:10.985 --> 00:15:31.049
You know, but for the most part photographers aren't gonna run in these issues unless they're sort of Because generally at least a lot of my clients are their event type photographers and weddings and things like that their the images are just going to their clients, they're not kind of being put out and so you know that's.
00:15:31.049 --> 00:15:35.166
They're not their clients not gonna know and I don't.
00:15:35.166 --> 00:15:40.283
Honestly I think their client probably won't care and if lies are getting a good product, that's all they were.
00:15:40.364 --> 00:15:46.124
Right, right, yeah cool you Well, we've taken a lot of your time, Jackie.
00:15:46.264 --> 00:15:47.649
You have one more I didn't have to start short.
00:15:47.995 --> 00:15:51.865
Well, I want to give Jackie an opportunity to ask one more question, and then we'll let you go.
00:15:52.875 --> 00:15:58.727
I was just going to say you know, it's like there's so much information that it makes my head spin.
00:15:58.727 --> 00:16:03.856
I mean, I just recently got a handle, I think, on NFTs, and that was like from a couple of years ago.
00:16:03.856 --> 00:16:08.325
Now Everyone's talking about AI and those implications for photographers.
00:16:08.325 --> 00:16:13.066
I don't know what's coming next, but you know there'll be something next.
00:16:13.455 --> 00:16:14.518
And I think that you know.
00:16:14.518 --> 00:16:27.945
Again, it sort of all originates with what you were saying before Like, photographers need to like register their copyrights right immediately, no matter what, because there's also going to be always something next to worry about.
00:16:27.945 --> 00:16:32.004
But yeah, I just I really appreciate your time.
00:16:32.004 --> 00:16:36.801
It's so much great information that you've put out there, so thank you for that.
00:16:38.609 --> 00:16:39.131
Jason.
00:16:39.211 --> 00:16:39.815
I appreciate it.
00:16:39.815 --> 00:16:40.940
It's really nice to talk about this.
00:16:40.940 --> 00:16:50.046
I mean, it's hard to tell where this will all go and what will come next, but I do think you know the basic tenets of copyright will last.
00:16:50.046 --> 00:16:57.849
I mean things, the essential prong to what is copyrightable is whether it is original to the artist.
00:16:57.849 --> 00:17:01.785
So as long as photographers keep it a ridge, they're all good.
00:17:01.785 --> 00:17:04.063
So that's what they should be doing.
00:17:04.063 --> 00:17:06.240
They got a lot of skill and they just use it.
00:17:06.240 --> 00:17:06.621
You know.
00:17:06.621 --> 00:17:12.742
But yeah, no, I really appreciate the time too that you guys spent with me and give me opportunity to talk about this stuff.
00:17:12.742 --> 00:17:14.165
It's always a fun thing to do.
00:17:14.606 --> 00:17:16.519
Yeah, are you?
00:17:16.519 --> 00:17:24.750
Are you going to be speaking anywhere in the near future where we could see you, and we're going to put links to all of your information in both of the show notes for this, yeah.
00:17:27.117 --> 00:17:30.773
Well, I put in a hopefully at WPPI we'll see they have the call for speakers.
00:17:30.773 --> 00:17:38.702
And I put in an AI talk because I want to go more into detail about that, because I think, that's the biggest shoe going on right now.
00:17:39.515 --> 00:17:51.683
You know I write every now and then I'll write some articles, but if people want to reach out to me, if I have questions about something, you know, contracts related or copyright related or anything, I mean we handle a lot of different matters.
00:17:51.683 --> 00:17:57.599
We're not just copyright but we do a lot of different, a lot of different legal issues and a lot of different legal issues.
00:17:57.599 --> 00:17:58.502
So, yeah, they can email me.
00:17:58.502 --> 00:18:01.785
It's erinette starklaw, my website is starklaw.
00:18:01.785 --> 00:18:06.382
It's very simple, starklaw, and feel free to reach out to me.
00:18:06.382 --> 00:18:13.557
I always have the opinion, consultations and general advice, maybe here if they need me for something more substantial.
00:18:13.557 --> 00:18:15.582
So thanks, guys, I appreciate it.
00:18:15.842 --> 00:18:16.343
Thank you.
00:18:16.844 --> 00:18:27.269
Yeah, thank you, and, as you've heard in this, he's a friendly guy, so he's a good person to reach out to and, you know, definitely a great person to know on our industry.
00:18:27.269 --> 00:18:28.659
Thank you so much for your time.
00:18:28.659 --> 00:18:43.448
I'm fascinated by this stuff and it's I have a feeling we're going to have you back at some point with with all of this leading up to the PPI, because, as you said, this is changing so fluidly in our industry.
00:18:43.448 --> 00:18:51.640
So, again, so if you have a question for Aaron, you can reach out to me, or definitely reach out to Aaron.
00:18:51.640 --> 00:18:55.441
Thank you again for being on this week's episode of something new every week.
00:18:55.441 --> 00:18:56.182
Take care everybody.
00:18:57.425 --> 00:18:57.946
Thanks yeah.
00:19:00.159 --> 00:19:02.425
Thanks again for tuning into something new every week.
00:19:02.425 --> 00:19:06.323
I hope you enjoyed this episode and if you do enjoy these episodes, I love it.
00:19:06.323 --> 00:19:09.952
If you hit that subscribe button on, however, you're listening to this again.
00:19:09.952 --> 00:19:14.826
We want to thank our sponsor, Miller's lab, Miller's labcom Great company.
00:19:14.826 --> 00:19:17.521
If you're not familiar with them, you should go check them out.
00:19:17.521 --> 00:19:20.061
Thanks again for tuning into something new every week.
00:19:20.061 --> 00:19:22.482
We will see you back here next week.
00:00:01.102 --> 00:00:05.371
Hey there, thanks for tuning in to Something New Every Week with your host, me, Jason Group.
00:00:05.371 --> 00:00:12.289
Each week, I'm going to give you something new that's happening in our photographic world just some great conversations with my friends and what's going on right now.
00:00:12.289 --> 00:00:14.946
Something New Every Week is sponsored by Miller's Lab.
00:00:14.946 --> 00:00:19.791
Miller's Professional Imaging is the largest professional lab organization in the United States.
00:00:19.791 --> 00:00:26.545
They provide professional prints and press products for professional photographers in all 50 states and Canada, and they're just a great company.
00:00:26.545 --> 00:00:29.608
If you don't know them, go check them out, MillersLabcom.
00:00:29.608 --> 00:00:33.728
And we're back.
00:00:36.223 --> 00:00:37.829
That just gave me the place to pause that.
00:00:37.829 --> 00:00:46.439
So if you were listening to the last episode, we were talking about Lynn Goldspitz's case against the Andy Warhol Foundation.
00:00:46.439 --> 00:01:09.121
It was super interesting and thank you for all of that information, and I know that Jackie has some other questions, but I really wanted to just get right into the AI stuff and the stuff that you talked about, because I think that is the most important thing that's happening to us right now Real time.
00:01:09.121 --> 00:01:21.543
We're not all famous Lynn Goldspitz photographers, but this AI is a brand new thing and I don't know if you want to follow up on that question, jackie, before we give Aaron a chance to talk.
00:01:21.543 --> 00:01:24.447
But yeah, I want to give you a chance as well.
00:01:25.799 --> 00:01:31.112
I just wanted to explore what are the biggest issues right now with AI and photographers.
00:01:31.112 --> 00:01:42.647
I know they're concerned about a lot of different things in the copyright, of course, but who are photographers coming to you with their concerns, or have you had a case yet about that?
00:01:44.420 --> 00:01:46.507
I had a couple issues with it.
00:01:46.507 --> 00:01:50.448
There's a couple different areas where legal issues are popping up.
00:01:50.448 --> 00:02:03.430
One of them is using AI technology using other people's photos to build on their AI and whether that's infringement.
00:02:03.430 --> 00:02:10.085
So they're kind of scraping the internet of photos and then using that to improve their AI technology.
00:02:10.699 --> 00:02:11.524
So that's one area.
00:02:12.199 --> 00:02:17.308
Another area is for photographers who use AI.
00:02:17.308 --> 00:02:25.189
How much are they reliant on it and how much are they changing their photo from the original photo?
00:02:25.189 --> 00:02:45.127
So if they're kind of using it more as an editing tool, but then some photographers and some famous Instagrammers and things like that, they are creating images purely based off of AI and the question then becomes do they own the copyright to that?
00:02:45.127 --> 00:02:55.643
If they didn't make it, really If the computer, I mean, they may have put it in an input and now popped an image Do they own?
00:02:55.643 --> 00:02:57.168
Do they have ownership over that?
00:02:57.168 --> 00:02:59.146
Or is it just kind of free for everyone?
00:02:59.146 --> 00:03:00.444
Is it part of the public domain?
00:03:00.444 --> 00:03:05.526
So those are kind of some of the areas, that where AI has been affecting photography.
00:03:10.560 --> 00:03:18.985
What would your advice be to a photographer who had a concern that they had an image that was then manipulated or like?
00:03:18.985 --> 00:03:23.683
I don't know if stolen is the right word, but I don't know what you would term it.
00:03:23.683 --> 00:03:25.201
Yeah, I mean.
00:03:25.582 --> 00:03:28.110
So AI technologies.
00:03:28.110 --> 00:03:37.866
It's hard to figure out how to know everybody's doing something kind of different, but there are cases where people are accusing certain AI companies of using previous works.
00:03:37.866 --> 00:03:41.628
So you're going to have to show that somehow.
00:03:41.628 --> 00:03:52.021
And that's a difficult thing to do is to show how, because what's happening is these AI generated images.
00:03:52.021 --> 00:03:57.588
Nothing is the same, so it's I mean, it's completely everything, everything that's.
00:03:57.588 --> 00:03:59.052
You know it's like a snowflake.
00:03:59.052 --> 00:03:59.602
You know everything's.
00:03:59.602 --> 00:04:00.365
Everyone is different.
00:04:01.439 --> 00:04:04.629
So they may have based it off of someone else's image, but it's a pretty hard thing to prove.
00:04:04.629 --> 00:04:13.412
But I think the biggest, the biggest issue is when the top developers go to register their works, they have to claim on the copyright registration.
00:04:13.412 --> 00:04:15.487
Are they the author?
00:04:15.487 --> 00:04:24.665
And I think this question of authorship who created this image is becoming a real problem, and it's not something that has been really dealt with right now.
00:04:26.564 --> 00:04:34.086
There are a couple of cases, but there's not really any good precedents out there about OK, how much do I need to rely on?
00:04:34.086 --> 00:04:36.673
Can I and can't I rely on AI?
00:04:36.673 --> 00:04:40.052
And when does that become no longer my photo?
00:04:40.052 --> 00:04:42.514
So, in a sense, when does it transform in this issue?
00:04:42.514 --> 00:05:15.791
And so where courts have come out on this is what the case is, a fact-specific analysis, and what they want to do is they want to look at OK, it's OK to use AI technology software for your editing, but are you the one making and this is a question that photographers should ask them who is making the artistic determinations in the final product of the image?
00:05:15.791 --> 00:05:16.694
Who made those?
00:05:16.694 --> 00:05:20.435
So I tell the AI, I'll turn the background green.
00:05:20.435 --> 00:05:22.892
Ok, I made that artistic decision.
00:05:22.892 --> 00:05:28.634
If I say OK, I want to add more of this type of trees.
00:05:29.576 --> 00:05:35.771
maybe I did it, but if I said AI, clean up this photo, I mean you could be as broad as that.
00:05:35.771 --> 00:05:42.869
Make this, put in a sunset of any color, do your thing.
00:05:42.869 --> 00:05:45.247
Does it really?
00:05:45.247 --> 00:05:46.009
Is it your throw?
00:05:46.050 --> 00:05:46.572
at the end of it.
00:05:46.805 --> 00:05:48.629
And that's it's really kind of.
00:05:48.629 --> 00:06:12.716
I think a lot of times what's going to happen is defense attorneys for copyright infringement cases where they get a hint of the fact that this image could have been partially generated by AI, they might say they might make the argument that no one really owns that image, that it wasn't authored by the individual.
00:06:12.716 --> 00:06:21.956
It was authored by an AI software, and AI software can't own copyrights.
00:06:21.956 --> 00:06:23.790
People own copyrights.
00:06:23.790 --> 00:06:26.853
So what happens in that case is it becomes.
00:06:26.853 --> 00:06:38.732
You could argue that then an image becomes public domain, and what I mean by public domain is that the image doesn't have an owner, it doesn't have a copyright to it and it's free for everyone to use.
00:06:41.584 --> 00:06:45.536
So I have so many questions and so long.
00:06:45.536 --> 00:07:17.435
So there are artists now on Instagram especially, that are using I'm blanking on these programs now, but are creating this artwork with prompts and selling this work, and is there any precedent at this point that they actually it is their work or because this program created it Like?
00:07:17.435 --> 00:07:22.564
Can I register that copyright if it's created by mid-journey or you know, like the others?
00:07:24.456 --> 00:07:30.521
And so far the copyright office has said no, you can't register it, you're not the author and that's where this had come out.
00:07:30.694 --> 00:07:47.646
That was it's a good case is someone created an image, I think on mid-journey, and they just put in one sort of simple prompt and everything was generated, and then they wanted to copyright it, and the person they said who's the author?
00:07:47.646 --> 00:07:52.757
And the person wrote the person who created it is the.
00:07:52.757 --> 00:07:56.440
It was the AI software that was used, but they're the copyright owner.
00:07:56.440 --> 00:08:06.221
And the copyright office said well, no, the author has to be a person in order for there to be a copyright attached to it, and the AI software is not a person.
00:08:06.221 --> 00:08:06.923
And there you have it.
00:08:06.923 --> 00:08:08.541
So that's where that's so far.
00:08:08.541 --> 00:08:09.560
That's where they're coming out at.
00:08:09.654 --> 00:08:14.843
So what that means though see, it's funny you know, like as a human nature instinct.
00:08:14.843 --> 00:08:24.000
When we create something or when it comes out of our computer, you know we think we own it right, and you might own, like, the physical nature of it, like if you've made a print of it.
00:08:24.000 --> 00:08:26.502
No one can take that physical piece of property from you.
00:08:26.502 --> 00:08:41.203
But if you decided to take that, take that, that image and put it online and someone you know copy and pasted it, you may not have any rights to stop them because you don't have a copyright.
00:08:41.203 --> 00:08:45.822
It's likely you don't have a copyright in it, even though you may be made a general prompt.
00:08:45.822 --> 00:08:54.785
But if you made no other decisions than just kind of putting in a general prompt of what you wanted the majority to spit out, then that's it.
00:08:54.785 --> 00:08:58.745
It's likely you don't got anything.
00:08:58.745 --> 00:09:10.778
And that's where, because it's a really tough you know, there was a case about this with I think it was a monkey or a gorilla or something that took a photo.
00:09:10.778 --> 00:09:13.025
Use someone's camera to take a photo.
00:09:13.274 --> 00:09:14.259
Yeah, you talked about this.
00:09:15.154 --> 00:09:19.000
Yeah, and that's kind of the a lot of cases that they this case has relied on with.
00:09:19.000 --> 00:09:27.244
This is because the court grappled with okay, well, who can own a copyright, you know, and they're like well, animals can't have copyright.
00:09:27.244 --> 00:09:33.316
I mean, you know, can't have copyright, so that's a which I think is unfair, that's where the decision is yeah.
00:09:34.457 --> 00:09:40.395
So we don't think it's possible for using it, though I think you know.
00:09:40.395 --> 00:09:52.322
I think people are using it for editing, which is very helpful, because traditional editing knows you would call the image, you go through each one yourself, then you would do it, make your decisions yourself.
00:09:52.322 --> 00:10:05.320
Now you can, I'm sure, do this by just putting in a general you know, demand request and then having the AI just go through everything but a lot of the changes.
00:10:05.399 --> 00:10:11.384
but remember so this is something to keep in mind is that photographers have rights to the derivative works.
00:10:11.384 --> 00:10:19.226
So if the work, the final product, is not very different than the original Right.
00:10:19.226 --> 00:10:28.438
So like, let's say, a photographer removed, you know, had the AI software remove blemishes from someone's face, but they did it, you know, the AI software did it automatically.
00:10:28.438 --> 00:10:33.701
The person, the photographer, just kind of put in a prompt and then they went through all the images.
00:10:33.701 --> 00:10:41.330
The photographer has a right, any work that is substantially similar to the original.
00:10:41.330 --> 00:10:49.903
So that's why you know a photo that becomes a painting, or you know a work of art that someone takes a photograph of.
00:10:49.903 --> 00:10:53.330
They have rights to those derivative works as well.
00:10:53.330 --> 00:11:00.309
So that's why if you change a photo to black and white, you don't need to register the color image and the black and white image.
00:11:01.152 --> 00:11:07.003
You just need to register one of, because they're substantially similar to the original and have a right to make it derivative work.
00:11:07.003 --> 00:11:09.350
So that's where you're going to be.
00:11:09.350 --> 00:11:18.309
So, with AI, if they're making these decisions, that's really not changing the overall photo itself, just minor changes, then you shouldn't have an issue.
00:11:18.309 --> 00:11:22.836
But I know some photographers that they're actually the only thing they're keeping in.
00:11:22.836 --> 00:11:25.221
There is like the person's head and everything else is.
00:11:25.221 --> 00:11:28.125
You know, a photo has been completely changed.
00:11:28.125 --> 00:11:40.350
Maybe there's a land like a cityscape added in and all sorts of stuff, and so there's a question of okay, well, is that really your photo anymore?
00:11:41.533 --> 00:11:41.653
And.
00:11:41.832 --> 00:11:45.961
I think that those are going to be decisions that are going to be, of course, are just going to have to deal with.
00:11:47.913 --> 00:11:49.658
As they come, they're just not equipped.
00:11:50.490 --> 00:11:58.124
It's crazy because you know the technology, especially that is moving just so fast and so many different issues are popping up left and right.
00:11:58.124 --> 00:12:06.288
I just don't think the copyright law was not written for stuff like this really, and it's going to be really hard.
00:12:06.288 --> 00:12:09.678
It's like trying to fit, you know, around peg into a square hole.
00:12:09.678 --> 00:12:17.903
It's going to be really hard for the courts to reconcile, okay, this whole set of laws with this new technology, how they come out on.
00:12:17.903 --> 00:12:19.354
So we kind of have to wait and see.
00:12:20.509 --> 00:12:26.095
Right and you know I'm curious about is there?
00:12:26.095 --> 00:12:33.442
So if I make this person who made the picture in mid-journey and then wanted to register it, is there a?
00:12:33.442 --> 00:12:33.981
Is there?
00:12:33.981 --> 00:12:38.807
Is there technology that can tell us what it was created with?
00:12:38.807 --> 00:12:41.052
Like, is it the metadata there?
00:12:41.052 --> 00:12:47.938
Or can some that's that same person just say it's my picture and I'm registering in a copyright?
00:12:47.938 --> 00:12:49.823
You're gonna have to prove it.
00:12:49.865 --> 00:12:52.605
Yeah, I mean the, the copyright office.
00:12:52.605 --> 00:12:57.057
There is AI detection software out there which is really popular now.
00:12:57.339 --> 00:13:01.030
You know Cuz, universities and things like that having to use this stuff for people right papers.
00:13:01.030 --> 00:13:16.734
So I don't know how much there is for images, but but regardless, the copyright office doesn't do any sort of due diligence on their part to go and check to see they're not gonna run their stuff through some sort of soft.
00:13:16.734 --> 00:13:18.746
At least for now they're not gonna do that.
00:13:18.746 --> 00:13:20.480
What they are gonna do is they're gonna rely it.
00:13:20.480 --> 00:13:22.845
You know you have to swear under oath.
00:13:22.845 --> 00:13:26.693
You know in the form of like an affidavit, when you register your image right.
00:13:27.520 --> 00:13:30.110
That you are the creator of this image.
00:13:30.110 --> 00:13:36.090
And if you're not the creator, if you're a co-creator, you have to say that and then you have to provide the information of the other co-creator.
00:13:36.090 --> 00:13:48.168
And if it's, if you are registering your image and you're saying that you are the creator, but 90% of that image is done by AI, that is a problem and it's You're likely to get a.
00:13:48.168 --> 00:13:50.940
But the copyright office is not gonna know where this is gonna really come out at.
00:13:50.940 --> 00:13:53.337
Is Is defense attorneys for copyright infringement.
00:13:53.337 --> 00:13:56.995
They're they're gonna really hammer down.
00:13:57.014 --> 00:13:58.039
Did you make this?
00:13:58.039 --> 00:13:59.289
I want to see.
00:13:59.289 --> 00:14:00.499
They're gonna demand and discovery.
00:14:00.499 --> 00:14:09.120
I want to see the raw image and I want to compare the raw image To this font, to this image you registered, and let's just see how different it is.
00:14:09.120 --> 00:14:18.039
And then there, then you know they're gonna want to go into the history of whatever Program you used and I want to, you know, show us the history and how you can't have this final image came out.
00:14:18.039 --> 00:14:19.687
Where did you make the decision?
00:14:19.687 --> 00:14:22.119
It's gonna, they're gonna put people under oath and it's gonna be tough, you know.
00:14:22.119 --> 00:14:34.700
So you may get that final registration, but if you accuse someone of infringement, attorneys are gonna start asking for stuff like this, because it's gonna be more images than not I think are gonna be.
00:14:34.700 --> 00:14:38.674
More Gen are gonna be generated by AI.
00:14:38.674 --> 00:14:39.860
I mean it's just such good.
00:14:39.860 --> 00:14:41.759
You mean that, are you just gonna be like?
00:14:42.400 --> 00:14:42.902
You mean that?
00:14:42.902 --> 00:14:48.474
Are you saying that lawyers are gonna take advantage of this precedent to help them help their clients?
00:14:48.474 --> 00:14:53.067
We lost Aaron, I think.
00:14:54.941 --> 00:14:56.004
You know we're gonna be.
00:14:56.004 --> 00:14:57.750
Yeah, we're gonna take advantage of anything we can.
00:14:57.750 --> 00:15:10.985
You know, I think too it's important that if they do do this to really kind of keep track of you know what changes they made To the but.
00:15:10.985 --> 00:15:31.049
You know, but for the most part photographers aren't gonna run in these issues unless they're sort of Because generally at least a lot of my clients are their event type photographers and weddings and things like that their the images are just going to their clients, they're not kind of being put out and so you know that's.
00:15:31.049 --> 00:15:35.166
They're not their clients not gonna know and I don't.
00:15:35.166 --> 00:15:40.283
Honestly I think their client probably won't care and if lies are getting a good product, that's all they were.
00:15:40.364 --> 00:15:46.124
Right, right, yeah cool you Well, we've taken a lot of your time, Jackie.
00:15:46.264 --> 00:15:47.649
You have one more I didn't have to start short.
00:15:47.995 --> 00:15:51.865
Well, I want to give Jackie an opportunity to ask one more question, and then we'll let you go.
00:15:52.875 --> 00:15:58.727
I was just going to say you know, it's like there's so much information that it makes my head spin.
00:15:58.727 --> 00:16:03.856
I mean, I just recently got a handle, I think, on NFTs, and that was like from a couple of years ago.
00:16:03.856 --> 00:16:08.325
Now Everyone's talking about AI and those implications for photographers.
00:16:08.325 --> 00:16:13.066
I don't know what's coming next, but you know there'll be something next.
00:16:13.455 --> 00:16:14.518
And I think that you know.
00:16:14.518 --> 00:16:27.945
Again, it sort of all originates with what you were saying before Like, photographers need to like register their copyrights right immediately, no matter what, because there's also going to be always something next to worry about.
00:16:27.945 --> 00:16:32.004
But yeah, I just I really appreciate your time.
00:16:32.004 --> 00:16:36.801
It's so much great information that you've put out there, so thank you for that.
00:16:38.609 --> 00:16:39.131
Jason.
00:16:39.211 --> 00:16:39.815
I appreciate it.
00:16:39.815 --> 00:16:40.940
It's really nice to talk about this.
00:16:40.940 --> 00:16:50.046
I mean, it's hard to tell where this will all go and what will come next, but I do think you know the basic tenets of copyright will last.
00:16:50.046 --> 00:16:57.849
I mean things, the essential prong to what is copyrightable is whether it is original to the artist.
00:16:57.849 --> 00:17:01.785
So as long as photographers keep it a ridge, they're all good.
00:17:01.785 --> 00:17:04.063
So that's what they should be doing.
00:17:04.063 --> 00:17:06.240
They got a lot of skill and they just use it.
00:17:06.240 --> 00:17:06.621
You know.
00:17:06.621 --> 00:17:12.742
But yeah, no, I really appreciate the time too that you guys spent with me and give me opportunity to talk about this stuff.
00:17:12.742 --> 00:17:14.165
It's always a fun thing to do.
00:17:14.606 --> 00:17:16.519
Yeah, are you?
00:17:16.519 --> 00:17:24.750
Are you going to be speaking anywhere in the near future where we could see you, and we're going to put links to all of your information in both of the show notes for this, yeah.
00:17:27.117 --> 00:17:30.773
Well, I put in a hopefully at WPPI we'll see they have the call for speakers.
00:17:30.773 --> 00:17:38.702
And I put in an AI talk because I want to go more into detail about that, because I think, that's the biggest shoe going on right now.
00:17:39.515 --> 00:17:51.683
You know I write every now and then I'll write some articles, but if people want to reach out to me, if I have questions about something, you know, contracts related or copyright related or anything, I mean we handle a lot of different matters.
00:17:51.683 --> 00:17:57.599
We're not just copyright but we do a lot of different, a lot of different legal issues and a lot of different legal issues.
00:17:57.599 --> 00:17:58.502
So, yeah, they can email me.
00:17:58.502 --> 00:18:01.785
It's erinette starklaw, my website is starklaw.
00:18:01.785 --> 00:18:06.382
It's very simple, starklaw, and feel free to reach out to me.
00:18:06.382 --> 00:18:13.557
I always have the opinion, consultations and general advice, maybe here if they need me for something more substantial.
00:18:13.557 --> 00:18:15.582
So thanks, guys, I appreciate it.
00:18:15.842 --> 00:18:16.343
Thank you.
00:18:16.844 --> 00:18:27.269
Yeah, thank you, and, as you've heard in this, he's a friendly guy, so he's a good person to reach out to and, you know, definitely a great person to know on our industry.
00:18:27.269 --> 00:18:28.659
Thank you so much for your time.
00:18:28.659 --> 00:18:43.448
I'm fascinated by this stuff and it's I have a feeling we're going to have you back at some point with with all of this leading up to the PPI, because, as you said, this is changing so fluidly in our industry.
00:18:43.448 --> 00:18:51.640
So, again, so if you have a question for Aaron, you can reach out to me, or definitely reach out to Aaron.
00:18:51.640 --> 00:18:55.441
Thank you again for being on this week's episode of something new every week.
00:18:55.441 --> 00:18:56.182
Take care everybody.
00:18:57.425 --> 00:18:57.946
Thanks yeah.
00:19:00.159 --> 00:19:02.425
Thanks again for tuning into something new every week.
00:19:02.425 --> 00:19:06.323
I hope you enjoyed this episode and if you do enjoy these episodes, I love it.
00:19:06.323 --> 00:19:09.952
If you hit that subscribe button on, however, you're listening to this again.
00:19:09.952 --> 00:19:14.826
We want to thank our sponsor, Miller's lab, Miller's labcom Great company.
00:19:14.826 --> 00:19:17.521
If you're not familiar with them, you should go check them out.
00:19:17.521 --> 00:19:20.061
Thanks again for tuning into something new every week.
00:19:20.061 --> 00:19:22.482
We will see you back here next week.
SEARCH PAST EPISODES
Search past episodes of Something New Every Week.
Disclaimer: The podcast and artwork embedded on this page are from Jason Groupp, which is the property of its owner and not affiliated with or endorsed by Listen Notes, Inc.
EDIT
Thank you for helping to keep the podcast database up to date.
