this post was submitted on 21 Aug 2023
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The skill of a photographer is in the curation of the work.
They are credited with the framing, the positioning, the timing, the settings they used on configuring the camera.
If someone else went to the same location, attempted to frame it, position it, time it, and configure the camera themselves, even if the resultant picture somehow managed to come out identically to the first one - hell, even if they used the same actual physical camera - the photographer who took the first picture has no rights or claims over this new albeit hypothetically identical photograph.
Third example:
If a photographer set up a permanent camera at a location that already had the scene framed, all elements within the frame positioned, all settings calibrated and locked-in, and somehow even managed to make sure that the timing was always perfect every time someone came up and pressed the shutter button, ALL the work was still done by the photographer.
Fourth example:
If an AI algorithmically calculated all of these aspects and robotically configured a camera's settings, then used a drone to deliver and orient the camera precisely to achieve the framing and scene composition as determined by the algorithm, then were to schedule the exact optimal moment to trigger the shutters each time a human pressed a button, that human would have no claims or rights over the resultant picture and it ought fall directly into public domain.
That third example is a grey area. The photographer has no control over the subject of the photo, which is arguable a large part of the creative part of the photo. I am not convinced that they would automatically get copyright in that situation.
And the third and forth touch on a lot of points that modern smartphones already do - automatically set up the camera, can adjust the frame of the photo, take several pictures and blend the best ones together, stabilise the shot, auto adjust exposure etc etc. When does taking a photo with your smart phone end up being like those examples?
But regardless, this copyright claim has some good arguments for why a prompt for an AI generated image should not result in the image being copyrightable - far better then the case the article in this post points to.
The core of the argument seems to be that you cannot predict the output of the AI, so the prompts are more suggestions and not strong enough to be considered creative enough for a claim to copyright. And that generating lots of images until one matches your idea is also not enough - as that is like doing an image search until you find something that matches what you want.
Which feeds back into that third example, if the photographer cannot predict what the people will do in the frame then given the above I would argue they have a weak claim to copyright over the image. No matter how much work they did to set up the shot.