In response to this article: The Warhol ruling.
Two significant forces are at war in the creative world: the ‘Creators,’ or independent content producers, and ‘Corporations,’ such as powerful technology, entertainment, and media companies. This battle, irrespective of its outcome (win, lose, or draw), persists unabated because of the vested interests of each faction.
The world has run on the fair use doctrine in the Creators vs. Corporations dynamic. In all its forms, AI tools represent an abstraction of a source, or set of originals, when creating derivatives. However, a fine line exists between the conception of a request and specified references that can be associated while generating AI outputs.
Example: /imagine: Loh Dalum Beach, Phi Phi Don Island, Thailand Image
OR: /imagine: Loh Dalum Beach, Phi Phi Don Island, Thailand, style Andy Warhol
We’re all dancing over that line today, with plenty of opportunity to trip.
Court challenges are shifting the emphasis away from fair use to the ‘proof of work’ concepts borrowed from the blockchain world. Here, the “proof of work” signifies the amount, quality, and original content creators produce — the registration of source and created content to validate a final product.
Blockchain technology has already been sold as validating an artist's unique creations, particularly in the digital art world. Most prominently seen in minting Non-Fungible Tokens (NFTs). NFTs are unique cryptographic tokens on a blockchain representing the sale of an individual object or piece of content. With digital art, an NFT associated with a work of art can provide proof of a transaction directly tied to an object. This model has become popular as it enables digital artists to sell their creations directly to collectors without requiring a physical product or source object.
Besides proving ownership, the blockchain technology underlying NFTs can also provide important information about the work, such as its origin, transaction history, and authenticity. Theoretically, this model can help ensure they refrain from plagiarizing the work. And can increase the overall transparency of the art market. Corporations see this as traditional supply chain management.
However, while NFTs can validate and prove ownership, they do not automatically confer copyright or other legal rights to the holder. Therefore, the use of NFTs and Blockchain in art has challenges and controversies. And to do this at a source level for all works created would be costly and time-consuming for independent creators. How difficult? Corporations need help in performing this business function for origin and source management in supply chains today.
There are startups, such as Ascribe, Verisart, and Artory, that are using blockchain technology to create a decentralized ledger of art provenance, providing an unalterable digital record of an artwork from its creation, helping to secure the intellectual property rights of artists and collectors alike. A good idea, but imagine having to register your sources in an repository or service. Corporations can also leverage these “partners” to prove the system is available, even if a significant burden to individuals.
Unfortunately, the ongoing conflict and perception that Blockchain or similar systems might work create a dark side. The methods, cost, and complexity can overburden creators with demands. Imagine proving creativity and originality in every detail. How can artists create unique, non-derivative content without clearly defining what that means to the end consumer? Compound that with an account or journaling nightmare; you can see a world of declining innovations in the artistic landscape.
This situation could escalate further. Corporate entities aim to control and capitalize on creativity from their libraries. Their strategy will include tools and mechanisms, including artificial intelligence, to control, manage, and replicate creative content at scale, starving out individual contributors and depriving the market of alternative viewpoints.
Derivative works of every imaginable kind would only speak with the voice of a corporate master, insulating consumers away from individual creator variations. Corporations would rely on internal or external editorial boards to review variations on a scale. So instead, proof of work turns blockchain into an anchor chain for creators.
Think about a corporate tool, such as “Getty AI.” A dystopian future where AI is captive to such companies. Consequential and pervasive. What it can not autonomously create, it can systematically create at scale. Artistic content fit to purpose or request. Want to see a piece of art or brand in every conceivable genre ever imagined? What to combine two styles owned by Getty in a mash-up? Pay up.
Creators feel disempowered, marginalized, or even obsolete already. Locked out of tools at scale, artists risk losing a common vocabulary with the public. It might be original, like removing cord structures from music, but it needs more familiarity and understanding, which an individual artist will never get due to scale. Is this some far-off future?
Established music artists are selling back catalogs at incredible prices for commercial exploitation by large corporations. Why? The scale of distribution, management of the material, and AI derivatives can warp and change essential and familiar music into countless forms. Forms the original artist could never scale to.
These corporations will easily create mountains of derivatives from their vast libraries. Create forcing functions on creators to sell early by locking up distribution, wallet, and mindshare while preventing unknown works at scale. Corporate departments define, review, and publish content on an unimaginable scale with the tools they are fighting today. Want to see one of your beloved characters, like Mickey Mouse, In the style of another creator we own? Here’s a curated set for you to buy. Want that song for a jingle or a mash-up from our library? I can do that all day.
The analogy of an art museum deriving rights from its visitors is what corporations attempt with this model — asserting ownership or influence over any derivative works made by creators, even if it’s just seeing it on display. Using tools or platforms or simply being unable to prove you didn’t know something existed at the time of creation would be subject to challenge. The analogy highlights the risks of using proprietary tools or platforms (symbolized by ‘art kits’ sold in the museum store) that could allow corporations to claim the creative output generated simply by claiming the final product is a derivative. Now imagine if the tools we’re discussing are all owned by content corporations. OpenAI? Midjourney?
The future is a fight between independent creators and corporate entities. Creativity could become excessively burdened and corporatist, potentially stifling independent creation to the point of elimination, leading to creative monopoly, echo chamber, or desert. The balance of power and control over creative works will become pivotal in determining the landscape of creativity in the future. I advise creators to remain independent and cautious of tools that limit their creative freedom and rights while striving to maintain a living. We all have to give up control at one point or another, but it should not rob us of our future — primarily the faceless entities that value control over the content.
Two perspectives to consider:
The transition from fair use to proof of work in art marks a notable shift in the creative landscape. Fair use, a legal doctrine allowing limited use of copyrighted material without permission, has long provided flexibility and freedom for artists to explore, remix, and build upon existing works. However, proof of work, a concept commonly associated with blockchain technology and cryptocurrencies, introduces a new paradigm. In this context, artists must showcase their investment in computational resources to authenticate their creations. This validation process ensures uniqueness, provenance, and scarcity within the digital realm. While fair use fosters creativity by reimagining established content, proof of work introduces a framework that emphasizes originality, verifiability, and a direct connection to the digital art market, potentially transforming how art is created, shared, and valued. Application of this to parts and pieces in the act of creation is likely a poor, if not terrible, idea.
Take heed. The potential for corporations to exploit legal mechanisms within the courts to stifle progress and assert control over emerging technologies is a concerning phenomenon. Corporations can strategically engage in prolonged litigation battles by leveraging their vast resources and influence, effectively bogging down smaller competitors or innovative startups. Through strategic patent filings, aggressive intellectual property claims, and relentless legal pursuits, these corporations can create an intimidating environment that deters smaller players from entering the market or pursuing alternative approaches. By manipulating the courts, they can gain the upper hand, dictating the pace of progress and shaping the trajectory of technological advancements to align with their interests. This stifles innovation and undermines the principles of fair competition, hindering the diversity of ideas and limiting the transformative potential of new technologies. Such actions highlight the need for a vigilant and balanced legal framework that promotes healthy competition, safeguards against monopolistic behavior, and safeguards the collective benefit of technological progress.
Views expressed within the content are solely the authors, who have no legal training other than the school of hard knocks, and do not reflect the website’s or its affiliate’s opinions and beliefs.
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