A Nuanced Argument Between AI Art and Copyright Infringement
Hey there, lovely art enthusiasts and curious minds! Alice Absolutely here, and today I want to dive into the buzzing topic of artificial intelligence in the art world and the ongoing debate about copyright infringement. Before I delve into my unpopular opinions, let me say that I initially planned to write an in-depth article with all the legal nuances and precedents in current and pending court findings. However, after realizing how many of you were eager for a more straightforward take, I decided to share my thoughts directly with you in this op-ed.
Is AI art copyright infringement?
Now, let's address the burning question: Is AI artwork copyright infringement? The answer is not as simple as it may seem and definitely not as black and white as many would like to believe. Many artists, digital artists in particular, express concern that AI can easily recreate their techniques and style to put them out of business ultimately. But let’s be honest; this is not a new phenomenon. Even before artificial intelligence, artists have riffed off the works of prominent artists for many reasons. Wide swaths of artists learn techniques by doing studies of masterworks. Just like the music world, visual artists often create original works that pay homage to their favorite artists or artworks by riffing off favored works in a new composition. Incorporating elements of a fellow artist’s compositions in your own is a way of engaging in a visual conversation with another artist. These innocent sorts of engagements with other artists definitely lack malicious intent and are hardly the use cases sparking debate. So what about more nefarious use cases like creating fraudulent art in the name of famous artists? The dawn of AI technology did not usher in a flood of fine art fakes. The tools and techniques for creating scam works existed long before Stable Diffusion hit the marketplace. No one is using Midjourney to create knock-off Picasso paintings to pilfer on The Antiques Road Show.
Where, then, is the injury to artists? It's crucial to recognize that AI art isn't putting Blue Chip artists like Damien Hirst out of business. Generative AI art is primarily impacting digital artists, illustrators, and artists working in specific niche markets like video games, RPGs, Fantasy, Anime, and Sci-Fi art. Let’s not be dismissive about the size of these art markets. The video game industry is projected to be a $25 billion dollar industry this year, with lead artists making upwards of $200,000 a year. A lot of commercial artists have built their careers in these markets; nearly 2,200 artists were working in the video game industry alone in 2021. AI Artwork has already begun to impact these art markets, and it will continue to have greater and greater impacts in these markets as the technology improves. Disruptive technology impacts market stakeholders all the time. But does this disruptive technology constitute copyright infringement?
What is the legal definition of copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
Common examples of derivative works include but are not limited to a motion picture based on a play or novel, a translation of a novel written in English into another language, a revision of a previously published book, a sculpture based on a drawing, a drawing based on a photograph, a lithograph based on a painting, a drama about John Doe based on the letters and journal entries of John Doe, a musical arrangement of a preexisting musical work, a new version of an existing computer program, an adaptation of a dramatic work, a revision of a website.
Perspective on AI’s Potential for Copyright Infringement
I am not a legal scholar. My viewpoint here holds absolutely no weight. However, in my opinion, based on my understanding of the way AI works, generative AI does not constitute copyright infringement. My opinion is based on the manner in which I understand generative AI’s process to work. Loosely, a large set of images from the internet were pulled into AI training sets. These images were paired with text. When a text-based prompt like “Lion” is entered into a generative AI platform, the software searches all of the images paired with the text “Lion” and learns what the essential, common characteristics are of a “Lion”. The algorithm then assembles those essential characteristics into new images of lions. This is not a collage process of layering all the images paired with the text “Lion” to form a composite image of a lion. It is a reconfiguration of those common characteristics into a new image.
The problem arises from these training sets of images. Artists were not given the option to be a part of this training set of images; instead, their work was scrapped from the internet, seemingly against their will (more on that nuance later). While no particular artist can lay copyright claim to the artistic composition of a dragon, there is a problem that these text-image pairs allow AI users to prompt the AI for artwork “in the style of” various living artists. This is not a hypothetical use case. One of the most common AI prompts is “in the style of Greg Rutkowski.” [I am fully aware that focusing on one artist is oversimplifying this issue, but for the purpose of a concise blog post, I am using this use case as a broad umbrella for several similar situations.] On the face of this, it does seem to be a good case for copyright infringement. However, I would argue that “Greg Rutkowski” as a text prompt is less about mirroring Greg Rutkowski’s actual work and more about creating a genre of high definition Fantasy art the likes of which many artists of a variety of mediums create, sell, and publish. In my understanding of copyright law, nothing protects a particular style of work from being emulated by others. Nothing prevents an artistic style from being named after a particular artist. “Greg Rutkowski” has become a populous term to describe a genre of visual art and has now come to mean more than just that living artist’s name. The archetypal elements and symbolism in Fantasy art are part of a cultural understanding, and various artists tap into these norms. Digital artists draw inspiration from works like Greg Rutkowski's, and AI art does the same. While I do not think this is particularly fair to Greg Rutkowski as a person, I am not sure this developing nomenclature, technology, or visual arts medium violates Rutkowski’s copyright claims.
Rutkowski’s copyright would certainly be violated by an individual user if that user created artwork with an AI prompt based on Rutkowski’s name and attempted to sell it as Rutkowski’s work. Then, however, that individual artist would be in violation of Rutkowski’s copyright, not the technology used to create the work. Does this software create the ability to infringe upon someone’s copyright? MOST CERTAINLY. That does not mean, however, that the entire technology is a violation of copyright.
Impact of AI on Living Artists
The internet has always been a vulnerable space for copyright, and AI only adds another layer of complexity. As artists, we must acknowledge the risks when sharing our work online. However, we need to question whether the fault lies with AI software or the broader issue of online content protection. Especially when we as artists have elected to make use of the vast internet as a sales platform for our work. Many artists rely on the Internet for their entire business model. No business exists without risk.
Indeed, in the Rutkowski use case, the online sharing platform DeviantArt, in particular, supported the business model of many working Fantasy art digital artists. Fans and collectors of this style of artwork frequently visit the platform to purchase Fantasy art. While DeviantArt has created an “opt-out” option for artists to keep images out of AI training sets, the “opt-out” form is hard to find and difficult to use. DeviantArt has gone so deep into the AI waters as to create its own generative AI software. This company bears no small amount of blame for allowing the artworks of artists on its platform to be scrapped into these AI training sets. Yet, this platform is so ubiquitous in the Fantasy art market that few working Fantasy artists have dared to remove their work from DeviantArt–their businesses rely too heavily on it for sales.
If artists feel compelled to call for a conversation about the lines of copyright in the digital space, that conversation must be much broader than artificial intelligence. It has to encompass the fair use doctrine, the right to digital privacy, smart contracts (aka NFTs), and corporate responsibility, to name just a few. However, we cannot discount the very real accountability an artist must face to protect their own work. It is easy to see the artist as a human victim under the bootheel of big tech corporations, but let’s not forget that artists are entrepreneurs. Artists are businesses with the same rights and responsibilities as these larger corporations. No one is rushing to the side of DeviantArt to help protect their proprietary process; DeviantArt is responsible for protecting themselves. Artists have that same responsibility. You cannot cry wolf on an entire technology because your sales platform sold you down the river when you are not even willing to take the basic step of removing your proprietary material from that platform because you know all of your customers are there.
Generative AI Is Not Copyright Infringement
My opinion is that generative AI technology as a whole does not infringe on the copyright of individual artists, although it can be used as a tool to infringe upon the copyright of individual artists. When that happens, the legal matter resides between the artist who has used the generative AI to create work that infringes upon the copyright of another artist.
This does not mean that I discount the massive impact this disruptive technology will have on artists. AI democratizes the creation process, giving everyone the ability to visualize their imagination. AI disrupts traditional art forms and will impact livelihoods. To that, I say, “Change is inevitable in a capitalist society.” More colloquially, I have said and continue to say, “Adapt or Die.” Disruptive technologies happen frequently, putting all manner of businesses at risk. We're responsible for embracing the new or voting for the future we want.
I completely believe and agree that generative AI is “coming after the jobs of digital artists.” The software code and the programmatic rules that govern drawing and creating in the digital space already exist in the computer. So it's easy for the machine learning of artificial intelligence to tap into that knowledge base to recreate works in digital styles. A digital artist cannot stop the tide of technological innovation any more than a Daguerreotype photographer could stop digital innovations in cameras and photography. However, artists can find ways to coexist with this technology.
As an artist, I stand behind the democratization of art through AI. It sparks new conversations, narratives, and opportunities for creators. Let's keep the dialogue open and welcome the evolution of the art world. It is so essential to embrace the changes and innovations that drive us forward. Let's explore the potential of AI art together and create a more inclusive art world! This is exactly what Ilya Shkipin did for his latest rounds of illustrations for Wizards of the Coast (read more below). The bottom line is that if artists are so obstinate as not to be willing to engage with AI, we will have no voice in shaping how AI is used ethically in the art world. This technology is not going away. We have to engage so that we can help create policies and practices that are beneficial to us.
If you're intrigued by the possibilities of AI art, why not explore my collection of disruptively fine art at Alice Absolutely Studios? Each piece is an original, touched by hand, and a reflection of my unique artistic voice. Embrace cutting-edge, disruptive fine art!
Current Dungeons & Dragons Controversy
Ilya Shkipin, a California-based artist who has worked on illustrations for the Dungeons & Dragons franchise since 2014, has admitted to using AI for illustrations in the upcoming D&D book Bigby Presents: Glory of the Giants. Outraged fans spotted the AI art and called out to an already embattled Wizards of the Coast on social media about this latest controversy. As of just a few hours ago, Shkipin deleted some social media posts about the work and is reworking the illustrations, while Wizards of the Coast, in a decision they will surely regret, has updated artist guidelines to prohibit the use of generative AI tools in the future. It seems no one is quite as capable of making a mess of their own business model as skillfully as Wizards of the Coast.
So here’s my hot take on this little gem.
KUDOS to Ilya Shkipin! Sir, you are a working artist who practices in a variety of mediums and genres. You leveraged a productivity tool that allowed you to turn your original concept art into highly polished finished illustrations more efficiently and thereby enabling you to make more art and money with your time! That’s good business! I am sorry that people are now slinging arrows at you for simply being good at your job. I, however, applaud you! Your Fantasy art is wonderful, and your paintings are brilliant! I wish you lots of luck in your future!
Caught you slippin’, Wizards of the Coast! This Hasbro subsidiary was not paying attention to the social values of its customer base and failed to create guidelines against AI art from contributing artists proactively. This company has been completely tone-deaf to its client base for all of 2023, and their declining Q1 profitability reflects that. You are not taking a stand on any of these values, Wizards, you are just reacting to the loudest reactions being thrown at you. Your fans expect better. Stand for SOMETHING more than just financial transactions. You are a creative company at your core and you cannot sit this conversation out when society has placed YOUR GENRE in the heart of the controversy. You might not have wanted to be in this fight, but this fight came to your house. Now you have to take a position and these weak, reactionary guidelines is not it.