This is an update for artificial intelligence (AI) news and notes that have come across my desk in recent weeks. This week, Adobe and Google released their latest AI machines, the US Copyright Office issued important guidance, and ASMP Ohio Valley put on a great panel discussion with photographers who are using AI in their businesses right now (video below)YouTube. Read on!
Adobe Firefly and Google Bard
Just yesterday, Adobe entered the generative AI image space with its newest platform, Adobe Firefly. This Midjourney / Stable Diffusion type competitor will leverage the Adobe expertise to create AI works. But importantly, Adobe is also promoting its Content Authenticity Initiative (CAI) and committing to, “… working toward a universal “Do Not Train” Content Credentials tag that will remain associated with a piece of content wherever it is used, published, or stored.” Time will tell how well this works, but it is a good start. More on this to come.
Likewise, Google released Bard, its ChatGPT type competitor. According to Google, “Meet Bard: your creative and helpful collaborator, here to supercharge your imagination, boost your productivity, and bring your ideas to life.”
US Copyright Office Guidance on AI
Last week the US Copyright Office (USCO) published guidance on “Works Containing Material Generated by Artificial Intelligence“. This document had some very clear mandates on what creators need to understand about how the Copyright Office is going to treat AI works. More on this to come via video, but here are some of the most important quotes:
In the Office’s view, it is well- established that copyright can protect only material that is the product of human creativity.88 Fed. Reg. 16,191 (Mar. 16, 2023)
The USCO begins its guidance by stating that it is well settled that only humans can be “authors” within the meaning of the Copyright Act. They cite to multiple cases and examples, but the bottom line is that the Office is making clear they do not view fully AI-generated work as having a human author.
In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of ‘‘mechanical reproduction’’ or instead of an author’s ‘‘own original mental conception, to which [the author] gave visible form.’’ The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.
If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘‘traditional elements of authorship’’ are determined and executed by the technology—not the human user.88 Fed. Reg. 16,192 (Mar. 16, 2023)
The USCO states that all works must undergo a case-by-case analysis and when discussing the input prompts, it states, “Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.” The trigger for the USCO is the inclusion of human authorship as a copyrightable element.
“… [A]pplicants have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.88 Fed. Reg. 16,193 (Mar. 16, 2023)
The guidance ends with a section to applicants telling them that they must disclose AI generated content in their works, and how to do so. Of important note, it states that applicants “must use the Standard Application” which is a major issue for photographers, as this means you cannot use the Group Registration format. You are limited to one image at a time on the Standard Application. We will be working on speaking to the Copyright Office about this matter.
The bottom line with the USCO guidance is that they are going to be very specific in the requirements of applicants to disclose AI-Generated works and that they will not be issuing registrations for protection of those works without substantial human authorship.
Photography In The Age of AI: What Happens Next? (Video)
On March 14, ASMP Ohio Valley in conjunction with ASMP National held a panel discussion with three photographers using AI in their businesses, along with moderator Ben Ko and ASMP Chief Legal Office Thomas Maddrey. You can watch the entire video here: