Quick Blog: Let’s Talk Copyright, Fair Use, and Creative Commons

Okay. So. I see there seems to be some mixups among artists regarding copyright and the AI thing, so let's talk about things that help artists and things that don't. (And no, this is NOT a copyright bad post)

Okay so what is copyright? Copyright.gov defines it as, “Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression.”

For once, a legal definition that can be easily deconstructed. Intellectual Property or IP is a little philosophical in definitions, but it’s basically things people have created with their minds or intellect. Original works of authorship are creations which involve some degree of creativity in creation. And a work is “fixed in a tangible form of expression’ when it can be perceived. So basically as soon as the thing you created is out of your head and on paper (so to speak) copyright exists.

Now, one thing that has come up is fair use. AI fans will claim the images are fair use, however fair use is a copyright exception that only applies to works which are not copies, and do not effect the income of the original income.

Most fanworks tend to be fair use, though there is some debate over making money from fanworks due to how much legal grey area there can be. Additionally, an artist getting commissions for Marvel fanart isn’t making a dent in Marvel’s income, meanwhile an artist making sales off Hades merch is actually effecting the smaller Supergiant’s income. It’s a case by case basis.

That said, AI art uses direct copies, and is effecting income, so fair use is not in play. Let’s just leave it out of the discussion, okay. We can fight about that one later.

Now, there is some concern over the gofundme by the Concept Art Association and how they’re going to use the funds. Some AI defenders are also stirring the pot, with claims the lobbyist will expand corporate copyright.

To be clear, I definitely think the Concept Art Association needs to be transparent about not only Karla Ortiz’s connection with NFTs (which many NFT bros switched to AI so it’s a valid concern) as well as exactly what policies their lobbyist will be lobbying for.

I do think having a lobbyist will be our best bet as tbh, most of our politicians don’t know how the internet works. As it stands now, we don’t really have must of a voice. I do think more artist unions with a focus on increasing artist pay (and not selling insurance like certain ones do) are a good way forward, however it still doesn’t solve the issue with AI.

And the thing is, copyright is how we deal with AI legally. It’s already ruled that images from AI generation can’t be copyrighted, and the music industry’s pull when it comes to protecting their copyright is why its AI Art and not AI Music.

We have a right to our work.

We should have a right to our work.

Copyright is the only protection we have, and I see nothing wrong with artists getting paid for the work they did or maintaining their rights.

I do think how Disney has manipulated how long copyright lasts is another issue, and there is definitely a power imbalance between the copyrights corporations hold, and what copyrights a small artist holds. It’s technically the same copyright, but Corporations have more money to throw around, which makes the whole system unequal.

But the answer is not removing copyright and IP entirely. The concept of owning what you create is sooooo important for artists legally.

That said, I do highly recommend folks, artists and non artists, look into things like copyleft and Creative Commons. When creating licenses, I actually base it off of creative commons, and it is incredibly helpful as a game dev to have clear cut usage terms like, “Can modify, gotta credit artist.”

And for some artists, they’re fine with leaving their work at CC-0. But it’s also okay if artists want to protect their work, especially when AI Image Gen programmers are creating image generators entirely off of dead artists. There is a discussion to be had about copyright, but it needs a lot more nuance than some folks are giving it.

So, the tl;dr is:

-Copyright kicks in as soon as you make a thing
-Copyright leans towards corps because money, is not inherently bad
-Creative Commons is cool
-Fair use good (please don’t sue teenagers)
-The creators of the GoFundMe have a good idea but needs more transparency.