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"Midjourney has made a calculated and profit-driven decision to offer zero protection for copyright owners even though Midjourney knows about the breathtaking scope of its piracy and copyright infringement."
That... sounds worrying. It's not hard to imagine a success here eventually being extended to criminalize any and all fan art as "piracy."
Fan art is generally protected because of a rule called "fair use", which allows people to use copyrighted work without permission. For example, if you briefly quote a book, the author won't have success if they go after you for copying from their book, even though you clearly did. Generally speaking, a person making fan art and not selling it is going to be protected under fair use. The law wants creators to have control of the thing they created, but we all live in a shared culture and we all deserve to participate in the art we experience, so there's some wiggle room, and this has been the case long before AI was a thing.
What these AI companies are doing, on the other hand... well, it hasn't really been tested in court yet, but they're doing a lot more than single images or brief quotes, and they're doing it for money, so they'll likely have some work to do.
Well, my main concern is the characterization of this as "piracy." It's not like image generating AIs are reproducing their actual films, right? Sure, it could be used to produce similar artwork to comics or stills or something, but it's not gonna recreate the substance of the media. Yet, that's how they've chosen to classify it, and I worry that it could set a precedent that could be used to sort of sidestep fair use protections.
Generally speaking, a person making fan art and not selling it is going to be protected under fair use.
This is not generally true. The fan art also usually needs to be sufficiently transformative, and could still be violating, for example, if a character is widely licensed.
Fair use is really complicated. Usually it's better to see if the copyright holder has any public policies on community creations, like WOTC's fan content policy.
So, no commissions or patreon support if you are drawing fan art, got it.
Fair use, in the US anyway, is based on four factors (source):
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
Not selling fan art helps to bolster factor #1, though that alone isn't enough. Fair use itself would need to be determined by a judge, but ensuring the work is transformative enough and doesn't disincentivize someone from purchasing the original work is probably enough commercial or not, but noncommercial theoretically should help.
(Not a lawyer, but I've followed this a bit)
Edit: note that fan art could be fair use but violate a trademark or other similar protected mark.
Good. Please have this kind of 'company' die off and never try this bullshit again, you theiving, planet killing assholes.
You could be talking about either company here. I'm no fan of AI but you know this will set precedent for scummy companies like Warner Brothers to over reach into other things for "copyright reasons".
Nope, I don't know that.
Techdirt has covered this kinda thing for decades. Being familiar with their work I am confident no good will come of a Warner Brothers Discovery win in court. It absolutely won't protect individual artists. It may even have the opposite effect of causing Gen AI models to avoid corporate art and only use art of individual creators who can't afford to sue.
Maybe the best we can hope for is a private settlement that sets no precedent.
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