Summertime

(AI and copyright, episode 5)

In the previous episode, among other things, we got rid of the myth of the seven differences. But how do we determine the borderline between inspiring and copying? In other words: at what point is a work no longer a reproduction in modified form, but a new, different work?

From one original to another

I shall illustrate this with a line on which we place a copyrighted work, say a poem, on the left and a totally different copyrighted work, say a painting, on the right. If we consider reproduction as a movement from left to right on that line, there must be a borderline beyond which we can no longer speak of reproduction.

For that left-hand work, for instance, let’s indeed take some lines of poetry, and for that right-hand work a certain painting. As a poem, for example, may serve the following lines, which immediately evoke a warm, somewhat rural image of June/July in the (American) Deep South. (Or nowadays of September in the Netherlands):

Summertime
And the livin’ is easy
Fish are jumpin’
And the cotton is high

(In reality, of course, this is the opening text of the aria “Summertime”, from George Gershwin’s opera Porgy and Bess, with libretto by Edwin DuBose Heyward and Ira Gershwin. But these four lines could well be considered on their own and -certainly if we didn’t know that much more follows- could absolutely count as a “work” in itself (see also this old blog combined with this even much older one).

Reproduction

Those who have read episode 3 of this series know that on the above line, the “ordinary” reproduction, the copy, is very close to the original work. When it comes to a copy of a digital work, you may even wonder whether there is actually any space between the work and the copy. After all, the ones and zeros of the copy are indistinguishable from the ones and zeros of the reproduction.

Modified form

But even the typescript of said lines of poetry (though often no more than a technical reproduction) already looks different from the manuscript with the same lines, and so we move towards the reproduction in altered form. Along the way, we might encounter the work of someone who set the poem to music (Gershwin! – though of course it could have been the other way round). In the case of another poem, this might have involved a single adjustment, to make the metre fit the melody. Recordings may have been made of the song thus created – records, CDs or MP3 or Vobis files. And maybe a music video was also made to accompany it. Or, someone has gone in a different direction and incorporated the lines into a story, or a chapter from a book. These are all potentially reproductions in a modified form.

If we move even further to the right on the line, there comes a moment when we have to say, “OK: now we have a new, different work, which is no longer a reproduction in a modified form. Just past that line, we will first see that the creator has indeed been inspired by the original work (but also no more than that; otherwise we would not have crossed the line).

Inspiration could, for instance, lead to a scat version of the (song) lyrics (“Da padaaa, Dapadada-badahppaa, Da padawaaah, Dapadoebieboewaaa...”). In itself, there is not much left of the poetic lines in this, apart from the metre I have tried to express. However, would this be sung to the tune of “Summertime”, everyone would immediately recognise that. In that case: there would be a replication of the melody, but not (anymore) of the text.

Inspiration could also lead to an image, incorporating the form elements from the lines of poetry. Let’s present this inspiration to Dall-E. Who has absolutely no problem with that. Type in the poem and you get:

Not bad in itself (apart from the incomprehensible letters that were added). That sunhat, in particular, does a lot, and I assume those flowers are the cotton plant in bloom. The fish on the bottom right looks like a catfish, which is typically a fish from the American South. Nicely done, Dall-E!
Still, it is clear at first glance that someone who does not know the genesis of the image would never make the link to “Summertime” here (even as an inspiration).

Other work

As we move further and further to the right on the line above, any resemblance or even memory of the original increasingly disappears, until eventually the works just really have nothing to do with each other at all. For example, we could place the lines of poetry on one side of the line and the (master) work of Prof Visser and Dall E on the other: “blue horse, purple dog & yellow hippopotamus” (from the (now updated!) theses on AI & IE (see episode 2). There is absolutely no relation anymore.

Where is the boundary?

After all this, the key question is, of course, “When do we cross that border?” Has, in our example, the boundary already been crossed if someone, better than Dall E above, does create a painting that perfectly depicts what is described in the lines of poetry -and nothing else? Ordinarily: yes, I would say. With this text at least, that could be counted on. But I could theoretically also imagine texts where we would still remain on the left side of the border. Not easily, but it is possible [1].

What matters is how much “individuality” of the original work can still be found in the other work. In other words, the determining factor is whether 1) copyright-protected elements from the original work, 2) have been recognisably reproduced in that other work. As long as this is still the case, in principle we are still talking about a reproduction in a modified form.

This is a logical criterion. After all, what makes that a creation is a protected work of literature, science or art? That it is original: its own intellectual creation, arising from free creative choices. Whoever adopts such an original, proprietary, element from someone else’s work into another work remains indebted to (the copyright-owner of) that original work. And that stops, of course, when that original element is not (no longer) recognisable. A very small piece of sampled music incorporated into a mix, which is so short that it is not recognised, does not make the mix a reproduction in a modified form. (Then why sample it, one might ask, but that’s another matter.)

Exception: applied arts

There is one exception to the above “rule”: 3) for works of applied art (i.e. industrial design, clothing, etc.), the overall impression is decisive. Here, in this more functional area. infringement is not deemed to exist even if it is noticable that one or more copyrighted elements have been copied, as long as the two products as a whole still give a clearly different impression, infringement is not deemed to exist.

The AI reproducer

So what does this mean for AI copiers? Well: we have seen that at the current state of the art, it is still quite a task to generate text or images that form a reproduction in modified form of an existing work. I have as yet not succeeded. But I will add that the AI generators I work with – ChatGPT (free version) and Dall-E2 – are not exactly top of the bill . Midjourney, in particular, can do much more than Dall-E.

In addition, of course, much (if not everything) is in the prompt. I am therefore willing to believe that there are already programs that (with sharp instruction) could very well deliver products that would qualify as a reproduction in a modified form of an existing, original work.
In any case, we now know how to test that!

But… this is clearly not the only copying the programs do, is it? What about all those existing works that have been “fed” to them, and now enable them to make so many beautiful things. Isn’t this feeding, that input of those works into the machine, also a multiplication? At the moment, in practice, that question is far more important than the question answered here, whether the machine itself can make a reproduction in modified form. High time to look into that (in the next episode)!

[1] It will depend on the degree of (great) originality and detail in the description in the poem and the degree of perfection of depicting that description.

Questions?