"Culture shouldn't exist only for those who can afford it."
Estimated 14 min read.
Under the fair use doctrine of the U.S. copyright statute, it is permissible to use limited [emphasis mine] portions of a work including quotes, for purposes such as commentary, criticism, news reporting, and scholarly reports. There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work. Whether a particular use qualifies as fair use depends on all the circumstances. See, Fair Use Index, and Circular 21, Reproductions of Copyrighted Works by Educators and Librarians..”
“Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent. See Circular 14, Copyright Registration for Derivative Works and Compilations..”
I believe the last quote is important for people to understand when it comes to the lawsuit that is going on between a group of artists and an AI image creator. I agree that artists have a right to protect their work as defined under the law. This also flows both ways when CBS flags and takes down a commentary on Star Trek when it
uses their footage: Yes, sometimes they let you use it, [aka they choose not to litigate] but they don't want you to make money off of it. Freedom of criticism and journalism does not mean freedom of making a dollar using someone's direct and unaltered images. I'll redirect your attention back to a part of the original quote:
"There are no legal rules permitting the use of a specific number of words, a certain number of musical notes, or percentage of a work."
Only a judge or jury can decide at this point whether image scanners are in violation of this rule, especially as Google has mentioned in the lawsuit article that they use "publicly available" information on the internet. I believe it will be decided on a case by case basis and whatever the decisions we must respect the rule of law, especially now.
If any artist believes that any AI work I have posted is copied from their works, do not hesitate to message me.
ADDITIONALLY! ON CELEBRITY NUDES!
I am committing to never creating nude images of living celebrities. I won't watch or support members who do. These practices are extremely violating. These are real people with real bodies, families, children, and feelings.I was a sexual assault victim advocate for a few years and this is my professional opinion: if it is illegal to make AI CP, to post revenge porn of your ex, hack into someone's device to steal and distribute their nudes, it should be illegal to make AI nudes of a living celebrity, or anyone else still alive, without their permission.
Now, there is a distinction in the law, and in my mind, when it comes to celebrities who are deceased:
At the time of her death, the famous actress [Marilyn Monroe] was domiciled in New York, not California, and as a result, her estate can't use California's publicity rights law to object to a photo licensor and others.
Again, if I make a nude of a deceased celebrity, and someone from their estate asked me to take it down I would. Full stop. Because I wouldn't want to see AI nudes of my dead grandmother either. Someone else's AI dead grandmother in their prime? That remains to be seen. I won't yuck your yum.
Now, I don't personally think that it is as big of a moral issue, but again, if I was going to do so it would be someone who died at least a generation ago to avoid offending family.
Looking back I realize I might have something considered 'celebrity nudes' on my page: Frida Kahlo, Vincent Van Gogh and Henri Toulouse Lautrec. But are these celebrity nudes when I am not listing them as the artists name but as 'in the artists style,' commonly called a pastiche? Especially when considering that Kahlo routinely published paintings that she listed as self portraits that are considered nude? Van Gogh and Toulouse Lautrec routinely painted academic nudes of others, but the subject's body is now the property of the artists? All of these artists died in the 19th and 20th centuries: Kahlo in 1954, Toulouse Lautrec in 1901, and Van Gogh in 1890.To put that into context my last living grandparent was born in 1945. Let me know what you think.
The actual legality, again, is based on your local laws and listings: In the U.S. it is based on each individual state. Only 10 states have specific laws dealing with AI deep fake nudes as of Jan 2024 when it comes to the living. There are no federal statutes. Here is an example of a state code:
California Civil Code Section 3344(a) states:
Any person who knowingly uses another’s name, voice, signature, photograph, or likeness [emphasis mine], in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.
While your state or country may not have specific criminal laws restraining these types of activities you can possibly still be civilly sued for damages.
This is not a victimless act. It's not even about arousal or sexual satisfaction. This is about revenge and control. Viewer discretion advised.
MY OPINION: JUST DON'T. IT IS NOT WORTH IT.
Now, any use of a living celebrities likeness should focus on a character and make it as distinct as possible that it is the character and not the celebrity themselves. Fanart can circumvent these rules, in my uneducated opinion, if there is no monetary benefit, but I am not a lawyer and this is not legal advice.
Deep fakes aside have you ever wondered why Nintendo is so litigious against streamers and Youtubers? Because there is a different Fair Use doctrine in Japan. Nintendo has full and ultimate control over their Intellectual Property and they use it: even if the custom might be otherwise.
Let's make clear Nintendo's attitude is the minority among Japanese companies. In Japan the tolerance toward "fan art" is not only very high but it is frequently encouraged. It is called 同人誌 ( Doujinshi ) :( Doujinshi ) : Many famous mangaka and writers started doing fan art versions of their favorite series and no one, I repeat no one except Nintendo ever sued someone or filed [to] complain over it. No one.
Nintendo has additionally lost my respect in filling a copyright strike case against the popular game Palworld, not claiming any of the creatures are like Pokemon, which is what many people assumed was the reason.
Instead, they filed a copyright strike using a patent which they filed AFTER they filed the strike...which is the opposite of how that works! All three of the patents are also extremely vague:
"It’s [also] claimed Nintendo believes Palworld has broken three different patents that cover starting battles by throwing objects and riding creatures in an open-world setting. All three were only filed earlier this year, however they are extensions of patents filed in 2021 while it was developing Pokémon Legends: Arceus."
"Nintendo also wants ‘Palworld’ shut down until alleged copyright infringements are sorted."
What further complicates matters, against Nintendo, is there is a new development in the Japanese attitude towards AI use of copyrighted training data posted 2024, from the Japan Agency for Cultural Affairs (ACA).
"Unlike the UK and the EU, which allow the ingestion of copyrighted works only for non-commercial purposes, Japan allows it also for commercial use, purposes other than production and apparently including the ingestion of illegally obtained content, such as pirated copyright material...The committee essentially embraced Article 30-4 allowing the ingestion and analysis of copyrighted materials for AI learning to promote creative innovations in AI.
So, as always check your local laws and listings before assuming you can use a work or before cancelling someone on the internet.
DO NOT PASS GO: DO NOT COLLECT $200
There are also artists I adore that are not interested, or have not aired their opinion, on AI use of their style. I still love and support these artists and respect their right to style and being stylish in return. I put their names here so that others may know the artists view and work in tandem with their wishes:
1. Stjepan Šejić if you look at his Deviantart page he has removed his images based on DA's use of AI image crawling.His work on the comic series Sunstone is magnificent and I found his work through DA for free. I have purchased Sunstone as well.
2. Russell Dauterman: He has worked on Thor: Goddess of Thunder. I asked for his opinion on instagram, as I could not find any information on his socials and so far he has not responded. Without a yes, we must delay our quest. Verily.
These artists either are interested in AI use of their art, are neutral, or have had their AI images put in museums all over the world. If someone tells you AI art will never be in a museum: It already has. These artists have their work displayed in New York’s Museum of Modern Art, the Victoria and Albert Museum, and the Max Ernst Museum.
ARTISTS OPINIONS ON AI USE
1. James Gurney
3. 6 Artists from 1975-Present Who Have Been Using AI Imagery
1. James Gurney If that doesn't sound immediately familiar maybe this will ring a bell: he illustrated DINOTOPIA.
Excerpts from the article on Gurney's personal blog
What I've Been Thinking About Generative Art:
Gurney's own work in AI text to image.
I'm watching what's happening with great interest. I'm truly inspired by the results other people are getting with the help of generative models. The people who consistently get the best results often have a computer coding background as well as an aesthetic sense [emphasis mine]. Is it “art?” Sure, why not? It definitely stimulates my imagination and the good stuff strikes me as original.
This describes me to a T. Most of my adult career and associates degree was in computing and my experience as an art and painting major before my hands started degrading, lead me into an English major for Graduate school using voice-to-text. I didn't graduate but I have one class and my thesis left if I wanted to go back and graduate, so I wouldn't consider it a loss right now: just on pause.
You often hear artists call AI image models as "tools," but AI is so much more than a tool. It's a creative partner, a synthetic genie, or an inspirational ally. It’s a weird feeling to acknowledge that a machine can be an able creative partner, with the human acting as a kind of midwife or helping.
I don’t feel threatened by AI Art. There's no way it can take away my livelihood because of where I'm positioned as a painter in gouache. Mostly what I do is share behind-the-scenes demos of plein-air sketching on YouTube. No way can AI ever replace that.
I would caution the alarmists to remember that applying some sort of digital rights management mechanism could have a chilling effect on the growth of this new art form, and end up helping the powerful entertainment corporations more than the little guys.
How will you be using Generative AI platforms?
I won't condemn AI or vow never to use it, and I respect artists who choose to ally with computers to make art. This all didn't arrive out of the blue. Digital artists have been automating parts of their creative process for many years now, with 3D rendering, ray tracing, procedural effects, photobashing, etc. AI models have just moved the needle way beyond where it was. Now, for anyone to succeed with generative AI, there's no halfway. They need to join the arms race, learn coding, train their models, learn about the secretive alchemy of prompt writing, and cultivate their awareness of past art styles. It's a very different path from painting, drawing, and animating with physical materials. We all have to make our peace with the digital sphere. Even classical musicians playing original instruments use digital recording techniques and social media, and read their music off iPads in concerts.
The invention of the internet a few decades ago was a boon for knitting and hand-lettering. In a similar way, the growth of AI and the decline of social media will be a powerful stimulus for such uber-traditional forms as face-to-face storytelling, on-location sketching, and recitation. Whatever it ends up being called, I plan to be part of that cultural countermovement.
2. Fiona Staples
The capabilities of AI art are incredible, and I’ve seen people using it thoughtfully to execute specific and original concepts. I love how democratizing the tech is, and that it lets anyone with an idea create an image.
I also think AI platforms need to seek permission from and pay royalties to the artists and photographers whose work they’re fuelled by.
How do we come to terms with using an artists name in our AI models when they have not been directly paid for their work?Even if the image scrubbers and training algorithms turn out to be 100% legal and within the law?
Support the artists whose names you are using!
Buy their products! Share that you bought them! Share WHY you bought them!
GO BUY DINOTOPIA AND SAGA!
I've purchased and read both and they are fantastic.
(Image generated in MidJourney with prompt “Fiona Staples comic art” lol)
We need to take the approach that came out of legal and moral quandaries of the last decade: pirating software and media.
If you are poor I have more sympathy. Someone downloading Photoshop or Game of Thrones has more sympathy from me as those parent companies are systemically greedy, narrow the field of availability of their product to monopolize, and in some cases are committing business practices that are illegal!
There was a recent post about a player uploading an image of them pirating a game with the caption "I <3 pirating Indie Games." Many on the internet were horrified and angry. The Indie Game Developer replied with pure class and humanism:
If you hate AI and you use, or have used, a pirated version of Photoshop, or even illegally downloaded something, I would suggest you look back at the situation and list the reasons you gave yourself for permission to download something. Why was this okay? Because it didn't impact your artform but someone else's? Why is AI different to you? Let me know in the comments and we can have an honest and constructive discussion.
"Culture shouldn't exist only for those who can afford it."
Bottom line: if you have the means to support these smaller artists I would advise you to do so. Now these artists are not small, but they are not a multi-billion dollar company that can hire a lobbying group for lower taxes and higher wages. Any artists who names and styles you emulate: be honest and be supportive. The main reason I think people are so upset with AI, besides the idea of theft, is the idea that they are being lied to. People hate feeling stupid. Be honest, be real, be creative.