That’s good to hear. It’s also nice to see others have benefited from the reviews posted over the years. I think I should skinny down my last comment to you and move everything out onto a separate comment for better exposure so others can address some of these points.
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As a buyer, the heart of this issue simplifies to a question over rights. Here’s how I see things; others can chime in too on this:
When a buyer purchases a package on the market, the buyer is paying for access to seller’s work. Of course, this access is not exclusive. Others can buy the content. At the same time, that purchase allows the author to assign certain rights to the buyer. This is part of Epic’s Marketplace Agreement. For example, we can use that license in an Unreal Engine product. Similarly, we can make derivative works based on the author’s artwork.
If someone steals that artwork, I am within my rights to request a platform to take it down. A third-party platform like Steam could do a Google search and discover that the assets are available on the Epic Marketplace.
It logically follows that Valve may ask for a receipt. Anyone that purchases the content can produce that, but the thief cannot. Even if the thief fakes it in Photoshop, Valve could check with Epic to confirm if the receipt is legitimate.
If the thief fails to convince Valve, Valve would conclude that the content is stolen and remove it.
A resolution may not be possible if the original seller doesn’t hold the copyright. If they don’t own the content they are selling, then they can’t confer a license to a buyer. What if Valve concludes that A.I. generated images are in the public domain or some other open license? Thus, we end up with a subset of packages that are far more problematic to use than other assets. Worse still, there’s no indication as to which assets Valve or other third-party hosting platforms might accept as copyrighted and which ones they do not.
This issue may become more of a headache with time. A.I. generators will grow in capability and expand into 3-D model creation. Are buyers going to have to know every generator and research each asset? This is a tall order.
The root of the problem is the assumption that ownership is conferred by the terms of service provided by the A.I. generator. For example, the seller offers the content to Epic, and Epic approves it once they see you have a subscription to MidJourney or some equivalent service.
Yet, it’s possible that MidJourney’s TOS contains unenforceable terms. They may claim to offer subscribers copyright, but that copyright is simply not recognized by the US, UK, or other government copyright offices. Everything I’ve seen so far indicates that these government bodies will reject such claims. Google Steven Thaler’s case for an example of a denied copyright claim on an A.I. generated image.
However, I’m not a lawyer. Put simply, we need clarification from Epic. Where does Epic stand on this issue? Does Epic believe that the seller owns the copyright to any and all content created by A.I. generators?
Also, it’s just as important to know where the other major content hosting platforms as Imgur, Valve, AWS, and others stand. Even if Epic concludes one way on this issue, these other platforms may disagree.
I did attempt to privately reach out to Epic, but didn’t receive any clarification.
I could also be in the wrong here.
Even if I’m correct, Epic could take additional steps to find a favorable compromise for everyone. For example, Epic could change its Marketplace Agreement to absorb the issues around A.I. generated ownership. Epic could also allow this content but place a warning in the description. Moreover, buyers could be given a way to filter A.I. content or individual sellers.
Personally, I don’t think this kind of content should be allowed. Even if the seller could claim copyright, this sort of stuff is extremely low effort. It clutters the market and makes me less likely to want to spend the time to sift through the content glut. In the 3-D model space, it would be like allowing sellers to post dozens of packs containing identical blank pyramid shapes, with maybe a little variation in scale between them.
Edit: Moved this response out of a previous reply.
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HA…I just now remembered the word I wanted to put in this statement…CLARIFICATION!
BTW, if anyone really cares, I took my pack off of the Marketplace. I want to make just one pack so as to not clutter the Marketplace with more packs…I just want one; a 3 in 1 pack. In all actuality I wanted to see how to get content onto the Marketplace and now that I had a first one it should be easier now.
And maybe I should wait for some type of clarification?
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I doubt we will get it. If there is a choice between action that might be controversial and no action, corporations usually chose the latter. No liability that way and less risks involved. I really wish I am wrong here though.
(and you did get indirect confirmation that this is OK by them checking your license to midjourney)
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If someone is interested I’ll be on live showing how it works and applications, nothing serious is Sunday!
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Yes, that is probably true on all of those statements.
So yes, I’ll probably go ahead an post the new larger pack, but first I need to finish it.
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According to MidJourney:
Subject to the above license, you own all Assets you create with the Services. This does not apply if you fall under the exceptions below.
This should meet the “you have all intellectual property rights” clause of the agreement. It doesn’t say you MUST have a patent, trademark, trade secret copy right — merely that you AT LEAST have property rights.
According to Midjourney’s license, you do.
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Affinity Photo and Affinity Designer are both excellent programs that beat the hell out of paying wads of cash for Photoshop.
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I think the issue here is that these terms are unenforceable if the copyright offices in the US and UK don’t agree. For the reasons I mentioned above, it looks like they don’t. This may present a problem for developers if someone steals assets created by AI generators. Will hosting sites remove content if they know about these limitations? It’s a gamble.
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That’s the crux of the issue. But I guess only time will tell. There is some element of human creativity involved: someone needs to come up with the idea, write the prompts, select images at the very least. It can be more involved than that though: you might go through multiple iterations, select image as a starting point (either in soft fuzzy way in Midjourney or quite influential way in img2img), retouch images (to have consistent style), upscale them, categorize, describe, prepare marketing materials, etc.
It’s a new kind of thing so it’s hard to exactly know what laws will tell… the closest analogy comes to my mind is being art director. He has a big influence on the final art piece, so it probably is a joint work. So in that case it could be said that it’s a joint work between prompter and AI, but AI cannot hold copyright, so all rights would be assigned to prompter, right? But idk, this is just a speculation, we need an opinion of experienced IP lawyer really…
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I think you are mistaking “copyright” with “intellectual property rights” — copyright is only ONE, not THE, way of assuring these rights. Nor does Epic REQUIRE copyright, merely that one owns the IP, which Midjourney says I do.
Now, if someone steals your asset will you be able to issue a cease and desist based on copyright? Not from my reading. Do I have the rights to the images and the IP rights to sell them? Most definitely.
I think the problem is that people are confusing copyright with rights in general. Midjourney assigned me the right to use said images and that meets the bare minimum of what I read regarding Epic’s Marketplace.
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Let me attempt to simplify: if I find an object on my property (which I own outright), and it is beautiful, even though I didn’t create it, I own it outright. I can sell images of it, charge people to draw, paint or photograph it, even though I quite literally have no copyright over it. I can make that object a brand — this gives me very real and tangible legal remedies.
All for an object I found on my property. No copyright was involved and the only “work” I did was accidentally finding it.
There are issues with AI art I have, but they aren’t in the area of IP rights. The question is how a conflict is resolved when two people “create” the same image using similar (though not exact) wording. I will agree, THAT will be a mess.
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This and VertexMachine’s comment are a fair interpretation and make sense. So copyright is questionable, (and probably not granted at this time) but IP rights are if provided in the generator’s TOS.
So, the question remains, what if someone steals your imagery? If the AI generator can create an identical image, then even having a receipt from a content provider here in the marketplace might be moot. When questioned, the content thief could claim that they generated the content themselves via the AI tool.
It might be a clear-cut case if the developer altered the images. In such a case, the developer leaves their own creative ‘stamp’ on the images, thus the thief can’t claim it as their own IP.
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Now let me stand on the other side of the fence.
Interesting analogy, but first and foremost copyright is very involved when it comes to marketplace assets. Both from seller and buyer perspective. When I buy some item on the marketplace Epic is granting me quite a bit of rights:
4.2.1.a Purchasing a Marketplace product grants to the purchaser a non-exclusive, worldwide, and perpetual license to download, use, copy, post, modify, promote, license, sell, publicly perform, publicly display, digitally perform, distribute, or transmit the content for personal, promotional, and/or commercial purposes under the Epic Content License Agreement.
Using your analogy imagine finding a very interesting toy… mickey mouse toy. And now start earning money on it in a way you described above. And let me know how was your experience with Disney lawyers. And it’s not that far fetched too, I’ve seen all those systems generating images with watermarks and signatures. Those systems also can generate portraits that are very familiar to famous celebrities that had their public image protected. Of course this can happen also with human artists. But it is far less likely that professional artists isn’t aware of those things and goes ahead and violates some IP rights.
On the ‘not copyrightable side’ the marketplace guidelines has this:
2.2.d Use of unmodified public domain content is limited to assisting with presentation, while not being the majority of the submission,
If the images are not copyrightable, they are essentially public domain, aren’t they? So basically those assets are in violation of that rule.
It’s complex.
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It’s not 
. Even without AI involved copyright on derivative works is complex, and usually involves determining if the derivative is originally enough…
Edit, and to add to this debate more, let me share recent article written by actual IP lawyers:
tl;dr: the most important quote from the above is: The risks associated with using these tools to generate art are largely unknown at this stage, as they have not been substantially tested in any courts.
Edit: and this is interesting recent interview with a lawyer:
I followed up on the article and video. The issue is a lot more complex than I first thought. What do you think is the final takeaway when applied to the marketplace?
Here’s how I see it now:
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Issues of copyright, trademark, and intellectual property rights related to content using A.I. generation tools are yet to be fully tested in courts.
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The less creative/decision-making input a person has in the generation of A.I. artwork, the murkier these issues become.
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It’s possible that some A.I. generated content, if unaltered, may be public domain, even if sold on the marketplace.
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Some content released on the marketplace will be fully A.I. generated and may be public domain, other assets will have ‘more’ creative input from sellers.
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There is currently no Epic requirement to state if an asset is generated by A.I. tools, or which tools are used.
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Without a requirement from Epic to disclose A.I. generation tool use, it’s difficult for buyers to perform their own risk assessment.
I feel it’s reasonable to conclude that Epic should require sellers to disclose if an asset uses A.I. generation tools.
I should also add that it might be prudent to limit this requirement to A.I. generation tools only. A.I. assist software like the new Photoshop cropping tool shouldn’t need to be disclosed. The tool does not generate new imagery in an appreciable way and requires substantial human input.
Personally, I would still like to see an option to filter out this content entirely.
This quote is from my post above…
I don’t know if that ID number would be enough to fend off any would be lawsuits. I just know that each time I use MidJourney, I get a new unique ID number; and so does everyone else for that matter.
Also I WILL be posting a new pack tomorrow (which will be my only pack; at least for now, available on the Marketplace…I took the other one down). So for those that want to write a comment (good or bad) in the Question section of that post, have your pins and paper ready…um…fingers ready to type!
One last item; I know for me personally, I do put in my post that it is AI Generated art that I am using to make the images; it only seems fair to let potential buyers to be aware of that!
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There are many things that are not copyrightable that are IP — brand names, logos, etc. are IP. Can I copyright “Kentucky Fried Chicken” — no, but is it essential (and valuable) IP? Yes. Are they “public domain”? No.
Once again, Epic doesn’t grant you “copyright” but a license to use — this is VERY important and is exactly what Midjourney indicates: you have the right of usage. What Epic CANNOT DO is assign you the rights to any asset — only the asset owner can do so (and it is actually more complex than that — which is why people get into trouble after the fact when they think they bought exclusive rights to an asset and did not).
2.2.d Use of unmodified public domain content is limited to assisting with presentation, while not being the majority of the submission,
The problem here is that it is NOT public domain — or I wouldn’t have to pay to license it from Midjourney for the right to use it.
If the images are not copyrightable, they are essentially public domain, aren’t they?
No. As per Midjourney’s license, I must pay-to-play, ergo it is not public domain.
It’s complex.
Yes. And we will have to see what the courts says when two people claim the same artwork as their own. Much like Epic’s license, Midjourney does not state you have an EXCLUSIVE right to the image. Merely that you are licensed to use it.
I know it’s terribly confusing, but that is the whole point of obtaining a license to use IP, IMHO.
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This places an unreasonable burden on Epic and ignores the very real aspect that, in the case of Midjourney, you purchase a license to use an image, not the image itself. How the courts will decide “ownership” is irrelevant to Midjourney or Epic’s marketplace.
You would be placing an undue burden on Epic to assure every asset is actually owned by the seller — how would you go about insuring such proof?
Some content released on the marketplace will be fully A.I. generated and may be public domain, other assets will have ‘more’ creative input from sellers.
AI generated vs AI generated based on my decisions — see at about 11:00 in the video where she states that the prompt could be considered copyrightable and the image produced is a derivative work of that prompt. This is exactly how I see the courts eventually deciding it (however, Midjourney at the moment states that all art is licensed from them so taking that you read the license, you DID read the license?, you may have a hard row to hoe in attempting to make the argument of exclusive copyright).
The less creative/decision-making input a person has in the generation of A.I. artwork, the murkier these issues become.
Again, the video even addresses this aspect — it doesn’t have to be good to be a derivative work. That said, Midjourney does not assign you a copyright, but a license to use an image. Even if two people end up with the same image, neither of them OWNS the image, merely a license (if they paid) to use it.
This is no different from “buying” the assets off of Epic’s marketplace. You do not own the asset. You own a license to the asset with a lot of restrictions.
As I pointed out prior, it is actually irrelevant because according to Midjourney you do not own the images but are instead licensed to use them (which includes selling them, individually or as a derivative work).
Since you do not have ownership, there should be no lawsuit — even if two people create the exact same image, neither OWNS the image. They only have a license to use it.