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stop-him · 2 years

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Current Thing

Since I follow some artist and art-related blogs, I've been seeing a lot of people up in arms about AI art. And, well, meh, frankly. There's a lot of takes from a lot of folks and most of them seem indignant but also... not exactly coherent. On occasion I've felt the urge to Say Something but I don't feel strongly enough about it to actually have an argument on someone else's thread; I'll say things here in my own post out here in the wasteland so it'll be sure to be ignored.

First off, can I say that it's kind of rich to be listening to people gripe about the ethics of AI art when some of these same people are gleefully defending content piracy of some sort... Really? I've heard astounding justifications about how it's perfectly reasonable to pirate anything from Disney movies to indie comics and music, but when the AI takes a chunk from one of your works, well, that's going too far, mister! Honestly, I just can't take these arguments seriously when that kind of double standard rears its head.

I also don't treat the argument with a lot of respect when it comes from artists who make fanart of other people's established characters. Yes, I know, it's a well-established practice and most property holders kind of look the other way, but in the end, if you're drawing Princess Peach and you don't have Nintendo's express permission to do so, that's a violation of their rights every bit as much as what some AI might do with your art. So how many artists complaining about AI have truly clean hands of their own?

But setting that aside, there's a certain confusion about what qualifies as "ethics" in this case. Mostly, people are claiming ethical concerns over things they just don't like rather than any workable principles - not to mention what is and isn't permissible in a legal sense.

What is legal and what is ethical are not always synonymous, it's true, but I think it's worth looking at what's allowed and why before pulling judgement on an entire method of content creation. And here is where I put a break, because we'll be getting into a long string of details.

In US copyright law, there's things that can be copyrighted, and things that can't. You can't copyright ideas, and you can't copyright style. What you can copyright is the specific expression of those ideas, so while you can't copyright an idea like "big strong dude who can fly goes around fighting injustice", you can copyright the story of Superman. (You can also trademark the distinctive elements of Superman, but that's more of a business issue.)

The other thing about copyright law is that it's not absolute. It allows for a certain amount of use of material without requiring permission from the copyright holder. (Generally called the Fair Use clause.) These uses include critique and parody - you have to be able to reference something to analyze it, and to make fun of a thing, your work has to resemble the thing it makes fun of. Weird Al, for example, legally does not need to seek permission from the original artists to parody their songs, though it's well-known that he usually does.

This exception isn't limited to critique or parody. Works that incorporate collage, for example, can often get by without having to compensate the owners of each scrap of material that is included.

But this doesn't necessarily mean that you can reproduce the entirety of someone else's work and then claim "Fair Use" and not get sued. In practice, how it operates is: if you use someone's work, and they sue you, you have to go to court and say, "yes, I used this work, but it's okay because reasons", and then a judge or jury decides whether those reasons qualify as Fair Use. Legally, this is called an affirmative defense - you are admitting that you did what you are being accused of, as opposed to denying that you did the deed at all. This means that if the court rules against you, you are automatically liable for whatever punishment they hand out - you confessed to the "crime", after all.

So how is Fair Use determined? By examining a number of different factors, such as:

How fragmentary is the copied portion? A collage that takes just the eyes from a photo is likely to be more Fair Use than something that takes the entire photo. If the entire photo is taken, then it's more likely to be judged Fair Use if it is only a small part of the larger work, as opposed to something that is dominated by the photo.

Is the work for sale? Non-profit works tend to be given more Fair Use leniency than works being sold.

How transformative is the work? If you alter the work in such a way that changes its meaning, particularly if there's a case to be made that it offers some kind of meaningful commentary, that tends to help a Fair Use case. The less it resembles the original, the better, for this kind of reasoning.

Does the new work have a negative impact on the old? Which is to say, is someone going to mistake your new work for the work it copies from, and thus affect how the other work sells? Is the new work attempting to impersonate or replace the old?

There are probably more factors at work, but this is going to be long enough and I don't feel like looking it up for this post. But the thing I want to point out is that none of these factors are guaranteed to protect anyone in the case of a lawsuit. Many non-profit works have been successfully sued into oblivion, while many very profit-oriented works have fended off lawsuits. This is because these factors are largely subjective, and depend on the people making these judgements, who may or may not have given much thought to these issues.

And the whole point of going into all that is to illustrate that even the legal issues around art are sometimes unclear and murky, so the issues that are based solely off of personal moral judgements are going to be even more shaky. From a legal standpoint, it would seem to make sense that AI art which incorporates the work of others would have to undergo Fair Use tests just like work which is made by humans. Which means: someone is going to have to sue someone for anything to happen.

We can probably set up a scale where at one end, a work is copied in full and without alteration, and that is a clear copyright violation, while at the other end a work that is only similar in some undetectable way to the original is not. The question is, where does one draw the line, from an ethical standpoint, as to what is allowable and what isn't? And then, while chewing on that, consider whether the answer is based on the copier being an AI - or human.

Because a lot of the complaints I've read accuse AI of taking things from other art that human artists take all the time, and nobody says jack about it. I have legit read artists complaining about AI ripping off color palettes, which may be one of the least ownable things in art. Styles are imitated constantly, though a human might call such a thing a "homage" instead of "style theft".

And humans have outright copied other artworks since art began. How much of a rip-off is it if a young artist copies their favorite anime images? The entire anime and manga industries are stylistic copies and mutations of the work of Osamu Tezuka, who was trying to copy Disney. The US superhero comic of today owes nearly everything to Jack Kirby. (Well, perhaps not as much in the last decade or so. Still.) Let's face it, nearly no illustrator starting out trying to learn to draw starts by sitting down in a life modeling class to build it up from scratch, no, they start by cribbing bits from their favorite artists, learning through imitation.

The fact that some AI art might currently simply copy wholesale portions of other works is an indication that the technology is still in the learning stage, in a sense. In time these algorithms will become refined enough to be able to erase any direct resemblance to their references - as human artists do. (Or can. Some don't. Greg Land is still in the comics industry after all.)

Then where will we be? If no AI art directly copies an existing piece of art, then we are left with the indignation that human artists will be set aside in favor of machines. And this is just another form of the "buggy whip manufacturer" problem.

The issue is competition. Suppose you are an illustrator. The service you offer is the ability to turn a customer's idea into an image, to bring something from their imagination - filtered through yours - into the real world, in a form viewable by all. The promise/threat of AI is that a potential customer can have their idea brought into existence without needing years of practice in graphic art or needing you, the other human, to herd the idea into reality.

That's going to be powerful. If nothing else, imagine all the artists you've seen who've posted commission info that contains a list of things they don't want to do. Imagine all the horror stories of customers who refused to be satisfied with the results. The AI won't give a damn about how freaky weird someone's Mario foot fetish commission is, it'll just do it.

No protest GIFs are going to stop this world from coming. What human artists will have to do is pivot. The technical skill in knowing how to represent things in graphic form will become less important than offering something the AI will have a harder time duplicating - a superior imagination.

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