Non or this makes much sense tbh. The thing about this is that when you commission an artist, the artist is not actually given copyright, but the person who paid the artist is given the copyright. Why is it not the same for promoting?
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I had to make an account just to come in here to tell you you are not correct.
Copyright is held automatically by the person who produces the work unless otherwise specified in a contract or agreement. I am a commission artist, and I retain all copyright to all of my work, per my terms of service, unless otherwise sold via agreement, and I charge extra for copyright.
Someone can't commission me to paint something, and then turn around and sell prints of it themselves. I still did the work, and they need my approval before they can legally make money off of it.
The reason why AI art is so devisive right now is because thousands of artists have had their work scraped and the AI trained on their work without their permission or compensation, and unlike a human who looks at other art for reference or inspiration, an AI can look at a dataset and pump out thousands of similar images in a very tiny amount of time.
If the AI author or the user generating the image owns copyright, you can kiss artists selling their own work goodbye. The space will be flooded with "AI artists" who create work at a far faster pace than anything a real artist can create, for a fraction of the cost. The people who train AI on this art are profiteering off of the hard work of the people who spent years of their lives developing a skill.
Why is it not the same for promoting?
I think you mean prompting. Commissioning an artist in the context you're thinking of implies a written contract, signed by both parties [0]. This is the first reason where it isn't the same, and I believe is enough to consider new laws in the situation.
Even if the new law just codifies the process you're thinking of, it's better to get ahead of the situation, or else we make a mess of things like DMCA, etc.
That was Thaler's argument. He had the first prominent case in this debate. AFAIK, the artist implicitly gets copywrite to the work they created then your contract with the artist transfers that copywrite to you.
Thaler tried to argue that he and the AI were in a situation similar to "work for hire" with an artist, but there was no human input to the AI. But, the copyright office holds that non-human entities/events are not granted copyright protection and therefore have no rights to transfer. So, they rejected his claim.
the artist is not actually given copyright, but the person who paid the artist is given the copyright.
This is only true if it is written in a contract. In general, the artist keeps the copyright. Photography is the same way: Photography studios own the copyright to wedding pictures, school pictures, family portraits, sports functions, and the like. If you pay a photographer to take a family picture, you have to get permission to use that picture for a greeting card unless you've signed a form giving that permission to you.
Similar rules apply if I sell some artwork that wasn't commissioned. Someone else might own the original, but only I can make prints and post a picture where I choose. Unless, that is, we have a contract that says otherwise.
Because in the prompting case, the artist you commissioned isn't a human. Existing case law says you can't have non-humans holding copyright, because only humans can be creative, and copyright requires creativity. In the case of works for hire, the human artist is contributing creativity so the commissioner can steal[0] it for themselves. But with AI art, there's no creativity to steal, so there's no copyright.
[0] My editorialization. The rationale of what is and isn't a work-for-hire was not some principled decision but just a list of whoever wasn't in the room when the last major copyright law was drafted.
> Existing case law says you can't have non-humans holding copyright,
Most holders of copyright are non-human entities like Disney.
[insert Mitt Romney quote here]
The legal system considers groups of humans to be as equally protected as and have the same rights as individual humans.
Then it should hold those groups of humans equally responsible when they cause harm.
Is that actually true, absent a contract or agreement that you get the copyright along with the commission? I would think the artist gets it by "default" unless you're also paying for the rights or something?
https://www.law.cornell.edu/uscode/text/17/101#:~:text=a%20%...
If an employee makes something at work, the employer is legally the creator of it.
If someone contracts someone else to make something for him, the copyright in the work vests in the hiring party essentially when it's part of a larger work and the contract says it's a work for hire. A one-off commission on its own does vest in the artist.
(Disclaimer: I'm a lawyer, but I'm not your lawyer.)
It depends, but yes, usually. Post-1978, the author of a work is also the copyright owner as soon as the work is fixed in a "tangible medium of expression" (written down, recorded, dictated, etc.). The exception to this is when the work was created as a "work for hire" (WFH) [1] for an employer. The rules around what constitutes a bonafide WFH are governed by agency law in the US. The primary court case in this area is The Community For Creative Non-Violence v. Reid which outlines a fairly high bar for a work to be considered a true WFH (it asks questions like: did you go to an office where the employer told you what to do and how to create it, did the employer provide you materials, did the employer pay you as a salaried employee rather than a contractor, how were you treated tax-wise and benefits-wise, etc.). That said, as the copyright owner at the moment of fixation, you can absolutely assign that copyright in writing to anyone you'd like. So functionally, there is usually a backup clause saying something like: "this is a work for hire for us, but, in the event it's deemed not a work for hire, you hereby assign the copyright to us anyway."
[1] https://copyright.gov/circs/circ30.pdf [2] https://en.wikipedia.org/wiki/Community_for_Creative_Non-Vio...
IANAL, but as far as I know, the artist gets it by default in absence of a contract that specifically assigns it to the other party. It’s possible there are special rules around salaried employees but even then I’d expect almost all busineesses to have a specific condition of employment that the employee’s works are works-for-hire.
This isn’t true; it’s entirely based on the contract. E.g. I believe wedding photographers usually make contracts to retain all copyrights. They either sell the couple prints of particular photos, or sell them a license to make more copies (which will cost more than the typical photo order).