Back in August, a federal judge decided that works of generative AI aren't protected by copyright, and I agree. AI accelerationists (and AI companies) disagree. Discourse! By limiting the protections that AI-generated works are given, we bypass a lot of the economic concerns that people have about AI: We disincentivize models that scrape repositories of human culture without consent or compensation, and we remove profit from the equation of cheap, AI-generated content.
The philosophical answer as to why we can deny generative AI authorship is pretty simple, and I can make the case without stepping into the morass that the judge did in this case. His argument was there was no precedent to grant copyright to non-human entities. While this may be legally true, it sidesteps what makes 'authorship' different from 'content generation': intent and subtext. Generative AI has neither, at least to the degree that we can comprehend it.
Intent is judged by going back and asking the author what they meant by creating something - the why behind any creative work. When I write a poem, I (usually) have the subject firmly in mind, maybe some bits of inspiration I can point to. Sometimes, I can tell you exactly why I chose a specific word – whether it was the meter, sound, or meaning.
ChatGPT and Midjourney can do none of that. While it's possible to introspect the inner workings of LLMs, what you wind up with is a bunch of numbers that represent vectors. There's nothing to attach those vectors to, making the whole thing opaque. They don't have meaningful metacognition - and since that is true, I'd make the case that authorship is beyond them. Authors can explain their work to you - AIs can't.
If you don't have an author, you don't have an original work. You might have an incredibly convincing collage of parts that convincingly passes as original, but it is a simulacrum, a finely-grained average of smaller and smaller arbitrary vector choices. In some cases, this isn't even metaphorical - you can see the reality of generative AI if you get very, very close.
Midjourney recently released an upscale feature which is much more powerful than previous versions. The image size that you can produce with the 4x upscale is frankly breathtaking. I was working with some images, when I decided to put a few through Photoshop and inspect what to my eye in the originals was fine details - a filigree of lines. What I found surprised me.
Here we have the conceptual design of a board game, as imagined by the legendary artist, Möebius. It's pretty good as these things go - I've been using the new tuning feature to really hone the creation of these sorts of illustrations. You have a collection of 3D buildings on a board, at least one piece, and some spaces on the board that seem to have some commonality. Its at least a decent jumping-off point for me as a designer to think about how I'd implement something like this.
If we look very closely at individual elements, the style offers a peek at how the sausage is really made.
This is one of the buildings on the board. There's not a straight line to be had. Windows morph into corners, the base of the building is round at the base and square at the top, and the architecture falls apart into a sad birthday cake.
Here's another building with what, in the original image, appears to be a range of masts and towers for broadcasting or some other collection of technology. You can see, particularly at the top of the building where it overlaps the track behind it, where the AI stopped dealing with the building as part of the foreground and blended elements into the background, even molding the shapes to the blue track behind the object.
Famously, generative AI is bad at drawing hands. This makes more sense when you consider that there's no "planning" involved in AI art - there are simultaneous decisions that are made at increasingly smaller scales until you have hands like the above. Hands are things that physically get in each others' way - you must compose them, and there is no composer.
And, since there's no composer, the result can't be considered "a composition" - of word, image, or otherwise. Title 17, Section 102 of US Copyright Law, has this to say about works subject to copyright:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
I'd make the argument that generative AI is all process, procedure and system, and as such, the product of that process, even an intricate one, isn't protected by copyright. There may come a time when this isn't the case - but for the current deluge of generative AI - the porch light is on, but no one is home.