Category: Weblog

(AI and Copyright, Issue 4)

We concluded the previous episode with the observation that ChatGPT and Dall-E are technically among the Merriest Multipliers one can think of. After all, they bring their final products into being – without any remorse – using the existing texts and images that were provided to them by their creators for learning. Everything they create is built from those, you might say. And since we noted last time that even a reproduction in modified form is still a reproduction, building that final product from existing copyrighted material should require the permission from the creators of those existing texts and images. Right?

technical copy ≠ relevant copy under copyright law

Well… that depends. Actually, not every work that is technically constructed from elements of another work is automatically a reproduction in a modified form under copyright law. In the case of Chat GPT, this is also almost self evident. A user of that program would really have to make a huge effort when entering the “prompt” (the instruction to the program), to cause a text to be generated that even approximates an existing text.

the girl with the pearl earring

With an image generator like Dall-E, this subject is a bit trickier. Last winter, for example, the Hague museum Mauritshuis lent Vermeer’s “Girl with the Pearl Earring” to another museum. It took the museum little effort to replace this masterpiece with several modern adaptations, cretaed with the use of AI. The place of honour was provided to a work by German artist Julian van Dieken, which had been created using Midjourney. Of course, everyone can immediately recognise the original painting in this work.

Is this really a reproduction in a modified form? It very well could be[1]. And if Vermeer’s work had still been copyrighted, Van Dieken could have been sued for it, since he apparently edited the AI output himself (see section 3).

Incidentally, the same would be the case if the whole AI intervention had not been there, but the arranger himself had gone directly to work with the original (as seems to have happened here, for example). And if we zoom out a bit further: everyone knows of works where it is obvious that the creator “took inspiration” from another artist’s work. Sometimes just a little too much, but usually this does not give rise to copyright conflicts. We may take our inspiration from anywhere, as long as we remain original ourselves.

the seven differences -not

So where do we find the line between being inspired and copying? Funny thing is that in this context, some people give credence to “The myth of the seven differences”¹. Where this myth originates is a mystery, but I still notice its existence myself every year among my students. The myth holds that you could get away with imitating someone else’s work, as long as you make sure there are seven (or in some versions: five) deviations from the original. Nice thought, but not true.

Sometimes a work with seven (or as many as ten) differences will still be a reproduction in modified form. (Go ahead and count, in that aforementioned reproduction by Van Dieken.) Meanwhile it is also conceivable that a new, different work is created, even if there is only one actual difference. Indeed, it very much depends on what exactly is the same, or different.
To examine that further, we must take a sharper look look at what makes a product a “work”, i.e. a copyrighted product of literature, science or art.

Next time we will dive deeper into that.

For those who are interested: the illustration accompanying this blog is again by Dall-E2. This time with the prompt: “Oil painting of the girl with the pearl earring with seven differences.”

[1] Note that this would obviously not have any copyright implications here: the copyright has long since expired, since Vermeer died (much) more than 70 years ago.

1. In English better known as “the 30 percent rule in copyright” ↩︎

Do you have a small or medium-sized business and have you been planning to register one or more trademarks for your goods and/or services for some time? Then now is the time to apply for those trademarks. This is because you can currently apply for your trademarks at a discount of as much as 75%. Both at the Benelux Office for Intellectual Property(BOIP) and at the European Union Intellectual Property Office(EUIPO). You get the discount when you use the European subsidy scheme “Ideas Powered for Business SME Fund“. The grant scheme was initiated by the European Commission and aims to help small and medium-sized enterprises in the European Union protect their intellectual property rights.

Discount rates

For a trademark registration, you pay a fee to the office where you apply for the trademark. The subisidiarity rule applies to both national trademarks in the various member states and European trademarks. The basic fee for a Benelux trademark is normally at least € 244 and for a European Union trademark € 850. Thus, with the application of the subsidy scheme, the basic fee for a Benelux trademark is currently only € 61 and for a European Union trademark € 212.50. You also pay only a quarter of the application fee for additional classes. So a very generous subsidy scheme; especially if you wish to register several trademarks. The subsidy scheme is still valid until 8 December 2023, but under the condition: “first come, first served”. So don’t wait too long! More information on the terms and conditions of the SME voucher can be found here.

We like to think along with you

Do you need advice on applying for your trademark? For example, are you unsure about whether to choose a word or combined word-figurative mark? Or do you need help putting together the right goods and services for which you wish to apply for the trademark? We have a great deal of expertise about trademarks, are happy to think along with you and will work with you to ensure that your trademark soon enjoys optimal protection.

Also read our page on registering trademarks. There you can read all the things you need to consider when filing a trademark application.

(AI and copyright, episode 2)

In the previous episode, to answer the question of who owns the copyright to the creations of Chat GPT and Dall-E, we left off with the instructor, the person who whispers the prompts to these creation robots. Instructions such as (to CGPT): “Write a short explanation about the copyright protection of texts created by ChatGPT“. Or (to DALL-E): “create a painting of artists that struggle about ownership of a work of art, in the style of Salvador Dali.”[1]

Is giving such an instruction, a prompt, after which the machine does the work, sufficient to acquire a copyright on the result?

Well… About the instructions mentioned above, we can at this point already state that they are inadequate . They are so general in nature that you can still follow many paths when it comes to the design (yes, even within the style of Dali). All that is prescribed are the subjects, and with the painting there is also a style indication. For our purpose this is still too general.

concrete design

As we saw in the previous episode, copyright is all about concrete design. To my students, I sometimes summarize: “Protected is not what you say, but how you say it.” If five journalists were to independently write a report on the Eurovision Song Festival finals, these would contain many of the same facts and sub-topics. Still, there would be no chance of plagiarism. Everyone would have used their own descriptions, emphasized certain events, used a certain structure, used their own tone of voice. It is these elements that individually shape a text, that make it original, that put a personal stamp on it. The above mentioned instructions to the machine do none of that.

highly detailed, creative prompts

But exceptions can be imagined. I don’t dare to rule out that certain instructions could be so detailed, and make such clear creative choices within this detailing, that thinking up the instruction itself already meets the work-test (see part 1 for an explanation of this concept). Be aware that in such a case, it could still be in question whether that would immediately mean that the picture created on that basis would also yield a copyright for the instructor, but it is certainly a step in that direction.

A step, incidentally, for which it is difficult to determine where the lower limit lies. Prof Dirk Visser, who holds the chair of IP at Leiden University, has been working for several months to shed more light on this, among other things, with the help of a number of interesting propositions submitted to the vox populi (download pdf – in Dutch). The first of these is whether a picture created from the AI prompt “blue horse, purple dog & yellow hippopotamus” is copyrighted. Well, I think not. Even this instruction, although original, is still too little detailed to my taste.

the prompt as brush?

One might even wonder whether, at the current state of the art, AI programs are capable of expressing (or rather, in this example, “conveying“) such a level of detail, that the outcome of the question (using a necessarily more detailed prompt) could be different. This is also where my aforementioned second question comes in.

That this will one day be different, is nonetheless almost a certainty by now – developments are happening so fast. Once we get to that point, the instruction, the prompt, will have become the creator’s instrument, as it were, like a brush is for a painter and a camera (or even better: Photoshop) for a photographer. But the creator would then always need to place a firm personal stamp in his prompt (which remains a tall order to fill).

adding ones own touch

We have probably not yet reached that point at the moment. It is a lucky thing for the instructor however, that such a highly detailed prompt is not at all necessary to obtain copyright. Note that at this point in our search for a possible human copyright holder to an AI-creation, we have not found anyone yet. In fact, we may safely conclude that no copyright rests on the average AI-output. This is highly convenient for the instructor in this context. After all, this entails not only that anyone may freely reproduce and publish the AI-creation. But also that anyone may freely “build on” to it. In other words, anyone may edit the AI-creation to their heart’s content, give it their own (possibly only minor) spin. Post-editing (in text or image) does not require very much to add its own original character to the creation.

Under Dutch copyright law, we speak here of a so-called “reproduction in modified form”. Section 10(2) of the Copyright Act teaches us that such a reproduction is protected as an independent work, albeit without prejudice to the copyright on the original work. But if, due to the absence of human creative choices, the original creation is not copyrighted, that limiting conclusion (“without prejudice…”) does not come into play. The instructor is the first person to observe the still unprotected AI work – and, if he wants, the only one. This creates a unique opportunity to remain the only one to obtain copyright by means of a simple post-processing operation if, as at present, the “prompt” by itself will almost always be insufficient to reach that goal. This is now happening on an ongoing basis.

we have a winner

In short: We have a winner – even if they have to perform a little additional action themselves. More on modfified reproduction and the position of the modifier in the next instalment.

[1] This was the instruction for the picture posted with this blog: “Create a painting of artists that struggle about ownership of a work of art, in the style of Salvador Dali“. It was no coincidence that “the style of Salvador Dali” was chosen. In fact, the programme’s name DALL-E is, according to its creators, an amalgamation of the name of the Pixar robot WALL-E and Salvador Dali’s surname.