this post was submitted on 22 Sep 2023
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You're ascribing full human intelligence and sentience to the AI tool by your example which I think is inaccurate. If I build a robot arm to move the paintbrush for me, I would have copyright. If make a program to move the robot arm based on various inputs I would have copyright. Current (effective) AIs prompts are closer to a rudimentary scripting rather than a casual conversation.
It's not a matter of intelligence or sentience. The key question is whether the output of a prompt is fully predictable by the person who gave the prompt.
The behavior of a paintbrush, mouse, camera, or robot arm is predictable. The output of a prompt is not (at least, not predictable by the person who gave the prompt).
Fuck A.I. art and fuck its copyright, so we're clear where I'm coming down on things, but that argument alone would seem to discount alot of experimental stuff I've done where I won't know how it'll come out when I start but I keep it if it looks/sounds cool.
Even if you can't fully predict how a work will turn out, you still have control over your artistic processes in a way that the AI user is lacking. Even AI engineers often struggle to figure out what makes their models make the decisions that they do.
But don't forget that this is a question that exists in both philosophical and practical aspects. Philosophically "what is art" is a very nebulous thing to pin down. Practically, if AI users are allowed to copyright their output, they can use it for "plagiarism laundering" so to speak, by ripping off artists' entire collections, training AI on it, and then selling works that are clearly based on those other artists' even if non-identical. This is not something current copyright accounts for, but current copyright was made for a world with printing presses and photocopiers, not one with AI.
In most experimental work, the artist does make a direct contribution to some key elements of the work, for example framing or background. Which is all that's necessary, you can still obtain copyright over something that is only partially under your control.
If an artist gives up all direct control over an experimental work - such as the infamous monkey selfie - then I think they should no longer be able to copyright it.
Predictable? How are people 'predicting' those abstract paintings made by popping balloons or spinning brushes around or randomly flinging paint around. Where does predictable come in? Humans have been incorporating random elements into art for ages.
After you've spun enough brushes or popped enough balloons, the results will be fairly predictable. And some elements, for example the color of paint in the brushes/balloons, would be under full control.
Even if the final result is not completely predictable, an artist only needs to establish that a significant part of it is a form of creative expression.