AI Generated Assets on the Marketplace?

Distribution UE Marketplace
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Had they stuffed a period right after publicly available sources, yeah, I would have said that it was ambiguous as hell. But they didn’t. They added this bit:

“and sources we licensed”

Which implies that the publicly available sources were not licensed. To be fair, public domain does not have to be licensed, but then again, they didn’t say public domain, did they? Just because it is publicly available art does not mean it is public domain, right Chococat™?

OpenAI grants you the exclusive rights to reproduce and display such Generations and will not resell Generations that you have created, or assert any copyright in such Generations against you or your end users, all provided that you comply with these terms and our Content Policy.
Source: Dalle-E Terms of Use

This is where it gets tricky for OpenAI — you don’t own the images, but instead are granted rights to reproduce and resell. OpenAI retains all rights to the images. What’s interesting is that they don’t assert copyright (no doubt their lawyers see the text prompts as copyrighted and the art derivations)… but the source for the art is rather worrisome.

You will indemnify us for your use of DALL·E as outlined in our Terms of Use.

Yeah, so it’s my fault? Really, always read the terms of use/license/whatever-da-lawyer-says. Sometimes there are some very scary things in them. Indemnification is one of them: “Sure, we are selling you this foot-blowing-off app, but if your foot gets blown off, hey, man, that’s purely on you” — basically meaning you have ZERO recourse because, hey, you agreed to it!

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Hello people! I have to say after trying 4 different AI…
I’m quite convinced AI’s can’t destroy any job right now and the reason is simple:

There is a lack of content on each platform,
an example I want more content on Netflix.

As AI improves the quality and the workflow my conclusion:

For small studios or indie devs, means the chance to improve a lot our content, even to be close to the big studios.

Big studios care 0 about quality, just are looking to realease at speed light (see bugs from cyberpunk, assassins creed…)
Now I think they can work faster and improve quality.
More content is more money for Call of Duty, and just it.

Small studios now can be very strong in that sense because they care more about the product.

I think people are just afraid, I was, is normal
I recommend to try seriously,
I really want to see what a professional can do using the tool.

O course… perhaps… some people try to make money like an artist using images generated on stable diffusion or whatever, there is a watermark hidden in the image, easy.

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Ah about terms and conditions or whatever…
no one has the 100% of the rights, we are using third parties all the time so… guys

I understand is you can use the AI model according to:

"each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, 

->royalty-free, irrevocable copyright license to reproduce, <-

prepare, publicly display, publicly perform, sublicense, and distribute the Complementary Material, the Model, and Derivatives of the Model."

Of course, you can’t ask for money if you only have a package of generated AI images
But well not an expert, and not my case

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This is incorrect.

If I have ownership, then I can ask for money to allow you a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable copyright license to reproduce — that is part of ownership.

With Midjourney, for example, I own the images I produce (that is the terms of the agreement I made with Midjourney). As such, I can absolutely charge money for those images. Whether anyone chooses to buy them is an issue for the market.

All the AI programs have different licenses, some which go so far as saying you will help pay for their defense (that is the OpenAI/Dall-e license — it is a pretty ugly license).

But if I own an image, I can indeed charge money.

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Lastly, people are incredibly confused about copyright and what the US Copyright Office said about AI Art:

Despite popular misconception (explained in the Getty piece), the US Copyright Office has not ruled against copyright on AI artworks. Instead, it [ruled out] copyright registered to an AI as the author instead of a human. Ars Technica

Accordingly, I own the art generated by Midjourney (as I pay them monthly for the privilege). As such, I have every legal right to sell those images. In fact, Epic says this:

You represent and warrant that you have all intellectual property rights necessary for you to grant Epic the rights set forth in this Agreement, including all necessary patent, trademark, trade secret, copyright, or other proprietary rights, in and to your Content. Unreal Marketplace Agreement

Midjourney indicates that I do indeed own the art and that falls within the scope of what is boldfaced above.

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This is where you are wrong. US Copyright clearly states that AI generated content can not be copyrighted - as has been talked about amply in the beginning of this discussion - as there is no “human authorship”.

Works That Lack Human Authorship

As discussed in Section 306, the Copyright Act protects “original works of authorship.”
17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must
be created by a human being.

It does NOT matter what Midjourney tells you, national law always overrules any individual terms of service.

You can charge money for AI generated content, like images, because they are free of copyright. But anyone can just grab or screenshot your generated content and resell it exactly as is, without modification; And there is nothing you can do about it, because you do not own these images.

You also misunderstand the ArsTechnica article, which itself is plain wrong. Kashtanova , the creator of the visual novel, got the copyright for the visual novel for her complete work, because she did substantial work on the novel (text, formatting, design, story, etc.) and the AI images are only a small piece of the complete novel.
She did NOT get the copyright for the individual AI generated images.

The author of that article simply doesn’t understand US copyright law.

And I’m not sure why you quote the Epic marketplace terms, as it has no influence to wether you own a copyright for an asset or not.
It’s simply there so that Epic can not be sued if you sell assets you don’t own the rights for.

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The issue may be more complex than this. You could argue that an A.I.-generated image is an authentic work of human authorship if, and only if, you can prove that you had direct input in its creation.

Arguably, feeding commands/words into an A.I. generator falls under that definition. However, as far as I know, this has never been tested in court. A court in the US may decide that this input does not meet the standard to grant copyright. It’s possible that a court elsewhere may come to a different conclusion.

This is the problem with A.I.-generated artwork. It’s very much a use-at-your-own-risk type of purchase.

The solution may be to consider A.I. artwork only useful as placeholder content, much like BSP brushes are for static meshes these days.

Again, I don’t like this stuff in the marketplace. There’s no way to filter out specific categories of products from the “new releases” page, so buyers are either forced to filter to one specific category or everything.

It’s crowding out actual hand-crafted works from sellers.

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No. That is NOT the ruling and had you actually read it, you would understand. What the US Copyright Office ruled is that Non-human Ownership of copyright is not legal. The argument stems from someone attempting to argue that his computer had copyright. This was ruled invalid because in order to have copyright you must be human.

This has been incorrectly inferred to mean that all works that involve AI thus cannot be copyrighted. If I have involvement in deciding what the art is, my copyrightable text (which is not at all ambiguous), then the art the evolves from that is derivative — one of the five things that is important in a copyright. My words are owned by me and the art that stems from it is a derivative work.

Works That Lack Human Authorship

As discussed in Section 306, the Copyright Act protects “original works of authorship.”
17 U.S.C. § 102(a) (emphasis added). To qualify as a work of “authorship” a work must
be created by a human being.

My words are copyrighted as they were authored by me. The art is a derivative work. I own the copyright to my words and any derivative work that stems from them. In the same way that Stephen King still owns The Shining even if it is translated to Chinese.

The point of derivative works was to prevent IP theft through translation or minor changes that don’t affect the work as a whole (capitalizing every other letter for example or translating it into another language).

It does NOT matter what Midjourney tells you

Indeed it does. That’s why licenses are very important.

You can charge money for AI generated content, like images, because they are free of copyright.

And how did you arrive at this conclusion? What the US Copyright Office held is that a machine cannot hold copyright. But if I direct a computer to draw a particular image with code, yes, that image is mine and I hold copyright over a) the code and b) the image resulting from that code. This is where Midjourney’s license is important because it assures that all images generated from my text are mine.

You also misunderstand the ArsTechnica article

I was, again, pointing out what the US Copyright Office said, not what people keep attempting to infer.

And I’m not sure why you quote the Epic marketplace terms, as it has no influence to wether you own a copyright for an asset or not.

Because the OP asked. I pointed out that according the Epic marketplace terms, US Copyright Office and Midjourney’s license, I meet or exceed the terms of Epic’s requirements.

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It doesn’t have to be tested because it is by definition a derivative work and falls under one of the five points of copyright.

Let me explain step by step why this is true vs. me explaining to a human and getting the same work:

  1. The artist owns all works (unless there is a work-for-hire contract). Please note: if you hire someone sans contract, THEY own the artwork. Doesn’t matter if you paid them. I learned this when I wrote a substantial amount of code sans contract and a lawyer pointed out that I still owned that code, didn’t matter if they paid me.

  2. An AI can never own a copyright. It has no ownership. This is what people keep saying and, yes, that’s true. That means you do not need a work for hire contract with an AI — however, the owner of the AI software/hardware may end up being the owner, unless, da da daaaaah, there is a legal document saying otherwise (see 5 & 6)

  3. My words, even if they are poorly writ, are still copyrightable.

  4. My telling an AI what to generate is similar to me telling an artist what to draw, however, since the AI can never own the copyright and the company that owns the AI can, it all falls down to the license (a legal document telling you what is yours and what is theirs).

  5. As a result, what the AI generates is a derivative work and, according the license, I own that work (in the case of Midjourney — OpenAI’s license is a horror show and I would avoid Dall-e like the plague).

  6. Again, since Midjourney’s license says that as the owner of the words the work generated is mine, and since the US Copyright Office has no issue with that, I am quite comfortable with Midjourney’s license. As I indicated, the art is a derivative work — this literally is part of copyright law.

This is the problem with A.I.-generated artwork. It’s very much a use-at-your-own-risk type of purchase.

With Dale-e, yes, I would agree because the license doesn’t really give you ownership. At best, it is an attempt to give you with the left and take with the right. I would strongly suggest people read the Indemnification section because it is especially onerous.

Again, I don’t like this stuff in the marketplace.

I don’t like the poorly crafted people on the marketplace. What I like or don’t like is irrelevant.

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Everyone, please understand, seriously, that licenses are legal documents and actually do have weight.

The US Copyright Office never said that art generated by AI has no copyright. What they said was that it:

“lacked the required human authorship necessary to sustain a claim in copyright,” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.”

This is wholly different than Midjourney where there is human intervention to create a work (even if the words are lousy — because copyright doesn’t say the words have to be great words or even grammatically correct words).

Thaler renews his arguments that the Office’s human authorship requirement is unconstitutional and unsupported by case law."

Which the Office responds with… you guessed it, case law:

But copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” COMPENDIUM (THIRD) § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879)); see also COMPENDIUM (THIRD) § 313.2

Which then means:

So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence.2 He has done neither.

At issue was not was it produced by an AI, but can a non-human retain a copyright. This has been ruled many times as “no” — the most notable example was the Monkey Selfie Dispute where it was determined that since the photo was taken by a non-human, it was incapable of retaining copyright. Although:

A number of legal experts in the US and UK have argued that Slater’s role in the photographic process may have been sufficient to establish a valid copyright claim, though this decision would have to be made by a court.

Or it may have fallen through. Was the intent for the monkey to take a photo of itself? No. Just setting up certain conditions doesn’t necessarily fall in the “fruits of intellectual labor”. However, creating a system that takes input from a user, and generates an image does fall under the “fruits of intellectual labor” (granted the labor may be simple or even awful, but that isn’t the point of copyright law).

…news outlets were misreporting how he obtained the selfie, but he went along with it because it was "a bit of fun and some good publicity for the conservation cause”

Which is problematic if you are attempting to argue that you set things up so that the monkey would take the selfie but didn’t bother to attempt to set the record straight. It shows a lackadaisical attitude to copyright. Which is why you really need to be careful about IP.

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I would seriously suggest you contact a lawyer, because your understanding of copyright law isn’t the best. But let me explain it to you again:

First, the ruling of Thaler has no influence on the Copyright Act, the quoted paragraph (Works That Lack Human Authorship) existed long before the court case involving Thaler.

Next, again, it doesn’t matter what terms you agreed on with Midjourney, national law always overrules any individual terms. Otherwise a company could sell you stolen content and you would legally own it, just because their terms say so.

The current national copyright law of the US (also the EU and many other nations) is very clear that copyrights can only be granted if there is a human involved. The part that you seemingly ignore:

To qualify as a work of “authorship” a work must be created by a human being.

Merely entering text prompts does not make you the creator of the work any more than a customer of an artist becomes the creator of an artwork if he gives directions to the artist.
This is even more clear as Midjourney gives you random results every time you enter a text prompt, even if you use a seed. Merely picking a random result generated by the AI does not equal authorship.

The only way you can claim actual authorship over AI art is if you make substantial modifications to it, e.g. by painting over it, erasing parts, mixing it with other images. But in that case it is not the AI art anymore but a creation of your own labor.

I also find it funny that you hang on to Midjourneys terms this much, even though these make it clear that anyone else can freely use your generated images:

Please note: Midjourney is an open community which allows others to use and remix your images and prompts whenever they are posted in a public setting.

One could also argue that the Unreal marketplace constitutes a public setting and therefore anyone can “use and remix your images” as per the Midjourney terms.

.
But if you believe otherwise, good luck suing someone who uses “your” AI generated works without paying you.
Maybe you win and you set a new precedent for US law (which would still not change EU law though) - but until then don’t claim AI art can be copyright, when even large companies like Getty and Shutterstock with their own legal departments think otherwise:

On Wednesday, Getty Images changed course, saying it has banned the upload and sale of AI-generated images due to copyright concerns.

“There are real concerns with respect to the copyright of outputs from these models and unaddressed rights issues with respect to the imagery, the image metadata and those individuals contained within the imagery,” Getty Images CEO Craig Peters told the Verge.

Which also points to the legal hell you actually enter by using Midjourney, which uses copyrighted works for it’s generation - without permission; As VertexMachine said earlier, Midjourney sometimes generates images with (illegible) watermarks and signatures.

I expect Epic will eventually follow Getty and ban AI generated images from the marketplace.

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Also, if anyone is interested in the legal & moral hellhole that AI art is, this article will make your skin crawl: AI Is Probably Using Your Images and It's Not Easy to Opt Out

A glimmer of hope is this part:

The Federal Trade Commission (FTC) has begun practicing algorithmic destruction

More about this in another article: FTC case against Weight Watchers means death for algorithms - Protocol

This could spell the end for AI generators like Midjourney, which use datasets based on copyrighted & private images.

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I do totally agree about to don’t make money with ai generated content

This is the reason why Dream project uses as inspirational

I’ve been talking with stability creative director and he thinks exactly the same, and the project has full support

AI is not going to make your job, AI is an assistant to help to you yo make it better

In Dream images generation are always generated according your viewport. Generation is limited to 512x512 and I will add invisible watermark from stability (and perhaps another one visible)

as an artist you can use it before final art
As an environment artist, character or whatever to improve it

If you have no resources, you are not so much skilled (as me), gives you a good chance to learn and improve quality
If you are skilled, you can have many different variations

Currently the plug-in is working and first content generated by the community is coming

It’s for free, first release during the weekend. But in here for everyone who wants to test it:

https://drive.google.com/drive/folders/1HpBrv9Odu7XQDqdqLDYs7OyhbnVw6LGz

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image293×1190 23.4 KB

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image292×1184 46 KB

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Ok… now I’m worried

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About what?

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The end of the creativity!

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I think not, at least not yet. Take away the “AI” part and you have shutterstock :wink:

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Indeed it does: if an AI cannot retain copyright, then the company that owns the AI/hardware must retain it — and the license is the method in which they assure the transfer of ownership.

Otherwise a company could sell you stolen content and you would legally own it, just because their terms say so.

Irrelevant. We are not talking about stolen or illicit goods.

To qualify as a work of “authorship” a work must be created by a human being.

Yes. My words are works and the art is derived from those words. I think you are very confused about the concept of copyright and derivative works.

Merely entering text prompts does not make you the creator of the work any more than a customer of an artist becomes the creator of an artwork if he gives directions to the artist.

Again, this is patently false.

If a work for hire is created by an artist with the words that I use to tell them what I want, then I do own the work. Trust me on this, I’ve spent forty plus years making a living off of copyrighted works. I also was involved in a legal tussle regarding someone who neglected to contract a work for hire and yes, I hired a lawyer.

You entering text prompts satisfies the requirement of the copyright office.

Merely picking a random result generated by the AI does not equal authorship.

Irrelevant. We are not talking about a random art generator.

The only way you can claim actual authorship over AI art is if you make substantial modifications to it, e.g. by painting over it, erasing parts, mixing it with other images.

Yet I don’t have to do that with an image from a camera. Odd, why do I have to with an image from an AI where I give it specifics of what I want generated? It seems you are applying two differing standards.

I also find it funny that you hang on to Midjourneys terms this much, even though these make it clear that anyone else can freely use your generated images

I use Midjourney because the license is not as onerous as Dall-e. Nor do I use Midjourney in the open community. But thank you for your concern.

One could also argue that the Unreal marketplace constitutes a public setting and therefore anyone can “use and remix your images” as per the Midjourney terms.

Not successfully.

But if you believe otherwise, good luck suing someone who uses “your” AI generated works without paying you.

Per EU regarding AI assisted art….

Getty and Shutterstock with their own legal departments think otherwise.

That is speculation. What Getty is doing is assuring their customers that none of the images may exist in a copyright free-for-all. This is a very weak Appeal to Authority fallacy.

Which also points to the legal hell you actually enter by using Midjourney, which uses copyrighted works for it’s generation - without permission

At worst it is a cease and desist. So I cease and desist. I’m a little bit concerned you do not seem to understand this.

I expect Epic will eventually follow Getty and ban AI generated images from the marketplace.

Again, irrelevant. A company operating on fear doesn’t make your case.

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And the article states that:

Viral image-generating AI tools like DALL-E and Stable Diffusion are powered by massive datasets of images that are scraped from the internet

Whereas Midjourney is curated, not scraped from the internet.

This could spell the end for AI generators like Midjourney, which use datasets based on copyrighted & private images.

Again, you make an assumption that Midjourney is operating exactly the same way as OpenAI. Without proof, you have but speculation.

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By the way, this is the filter for Metahuman of the Dream project, as you can see the work still the same haha

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