Disney sues Midjourney

[FrogReaver]

Circular argument. You're attempting to convince that it should be fair use, you can't do that assuming it's already covered by fair use.

if one is engaging with ‘what happens if it’s [creating an ai from copyrighted material] deemed fair use’ then the answer isn’t ’assume It isn’t deemed fair use’.

And I’m not attempting to convince that it ‘should’ be anything. I’m just suggesting that’s a real possibility to consider.

 

[FrogReaver]

The Disney lawsuit isn't about scraping, it's about the derivative works created by AI. The output.

Assuming, arguendo, that the trial court decision in the other action is correct (that so long as the AI company bought copies of each work originally, they are entitled to use it to train the LLM as fair use), then the correct analogy isn't a photocopier, it's an artist.

In other words, an artist buys a bunch of books to learn how to make art. That's fine- fair use.
Now, the artist sits down and makes his own drawing. If his artwork is just derivative of a copyrighted work, then that's a problem.

If you look at the actual decision by the judge in the other case, he actually points this out. That derivative works will likely be actionable. Further, "scraping" without buying originals or licensing will still lead to liability even when used to train.

I think either photocopier or artist analogy could work. For the artist analogy it’s just not clear the ai should be treated as a separate entity like a separate artist instead of as a tool to make anyone into an artist. It’s also not clear that it shouldn’t be treated as a separate artist either, but I’m not the one making definitive claims about which way it will be treated, just raising real alternative possibilities.

If I’m deemed the artist using it as a tool, then the legal ramifications around who is responsible and who can get sued and for what is much different, no?

 

[FrogReaver]

Fair use till you try to sell it, right? Or is Disney just going after a whale instead of playing whack-a-mole with the various artist on who knows how many websites?

IMO. Disney in this instance is behaving ethically. Until the decision is final they should be defending their interests and the ‘whales’ as you put it are the only real threat to their interests at the moment.

 

[Rabulias]

My understanding is (and someone correct me if I am wrong) the suit isn't that it "can". You cannot pursue copyright infringement in potentia.

Is this a copyright issue? If I (or an AI at my direction) make a picture of a humanoid mouse that looks like Mickey Mouse but it is not a copy of any previous Mickey Mouse image, that would seem to me (again, not a lawyer) to be a trademark or IP violation, not a copyright violation. In a technical sense, nothing was copied. Copyright concerns might be involved in the training of the AI (and maybe that is part of this case?).

The case is that 1) it HAS done so, and 2) Midjourney has effectively advertised/ marketed the service on that basis.

I can certainly see how 2) is not a good look.

Sorry, but that's tu quoque, aka "whataboutism", a logical fallacy. In copyright law, the rights holder explicitly DOES NOT have to enforce their rights the same way in all cases. So, that a human can do it is irrelevant to the case.

Again, I don't think it is copyright here. See the image generated by @trappedslider above. I am 99.999% certain that Disney and LucasFilm have never produced such an image. Even elements of Vader's body are somewhat stylized and not a direct copy from any previous picture. But it clearly draws on the recognizable IP so it is an extrapolation of what an official Disney/LucasFilm image might look like. Disney might not want certain images out there that look official, and that is a trademark issue, as I understand things. And trademark does have to be defended.

Well, this suit is between corporations. It is not clear where a pro-corp stance gets you then.

Good point. I don't always think of the AI producers as corporations as they are so new, but that does not change the fact. And some "old school" corporations like Microsoft and Google are working on their own AI products.

 

[Morrus]

Disney might not want certain images out there that look official, and that is a trademark issue, as I understand things.

This is not correct. The appearance of Darth Vader is not a trademark. “Disney” is a trademark; Darth Vader is not. It is a copyright issue.

 

[Umbran]

Is this a copyright issue? If I (or an AI at my direction) make a picture of a humanoid mouse that looks like Mickey Mouse but it is not a copy of any previous Mickey Mouse image, that would seem to me (again, not a lawyer) to be a trademark or IP violation, not a copyright violation.

The logic, as I understand it, is based in "points of similarity". This can be understood a bit more easily in words or music - you don't have to steal an entire book or tune to be infringing - if you take enough recognizable segments, you're still in trouble.

So, basically, if you take enough bits so that when folks look at it, they think, "that is clearly Mickey Mouse," you are in trouble, even if the specific pose or setting he's in is different.

Again, I don't think it is copyright here. See the image generated by @trappedslider above. I am 99.999% certain that Disney and LucasFilm have never produced such an image.

Again, don't think in terms of the entire image at once. Think in how many ways this is similar to other pictures of Darth Vader.

For example, imagine "Mary Had a Little Lamb" was protected by copyright. And I publish:

Mary had a little lamb,
Bop shu wadda wah, bop shu wadda wah
It's fleece was white as snow
Bop shu wadda wah, bop shu wadda wah
And everywhere that Mary danced
Doooo wahhhhh!
The lamb was sure to boogie!

Clearly, that isn't exactly the original. I've added some stuff, and changed some bits. But enough of the original is there to be a problem.

 

[Bohandas]

It just occurred to me that most or probably all of these movies and media were never patented, so a technology based on them ought to simply be legal regardless of fair use

 

[Umbran]

It just occurred to me that most or probably all of these movies and media were never patented, so a technology based on them ought to simply be legal regardless of fair use

If you watch Big Hero Six, and develop an inflatable robot that offers health care services, Disney can't come after you, as they probably didn't patent that concept in the course of making the movie.

If you make your robot look like Baymax, Disney can come after you for using their copyright-protected IP.