To AI or Not to AI

We live in a strange time.

Only 1984 predicted books written by machines, and no one predicted art done by machines. None of us expected to live through a reboot of what happened to portrait artists when photography was invented, and none of us have any idea what is coming.

Many others are discussing this topic. I wanted to share a few thoughts of my own on the topic.

I know and admire quite a few artists. I have for years. So I have tremendous sympathy for the artists who were having a hard enough time making a living before this new development began to rob them of their livelihood. And I have sympathy for those who want to boycott those who use AI-drawn art.

And it is even worse that the AIs are copying the styles of the very artists they are putting out of work.

The problem is: currently, many artists charge $700 to $1000 for a book cover.

Many books today never make $700.

This means that they spend an entire year or two, sometimes much more, writing a book, and the entire profit, plus, goes to one artist.

Being able to use inexpensive AI art could be the difference between being able to afford to publish their books at all or not.

This produces a seemingly impasse between the needs of artists and the needs of writers.

But…what if it doesn’t?

Because there’s another option.

Once upon a time, I helped my husband study for the Bar. Twice. From this, I gained a bit of appreciation for common law. Unlike modern activist-judge law, common law was thoughtful and nuanced and often had come around to fair and reasonable solutions for conflicts between people.

Even earlier upon a time, I used to work for my father’s company. He distributed public domain movies to television. So I grew up familiar with some of the subtlety and nuances of copyright law.

When the AI problem emerged, I spent some time thinking about what I know about copyright law and trying to figure out how this art issue would have been handled had it happened forty years ago. I say forty years ago, because back then, nuanced laws were still a thing.

Now…with all this activism…anything goes. No one can guess which way the laws will go.

But here is my take on what would happen if the issue went to court, and we got the kind of nuanced judgments that created common law.

Okay so…copyright. Copyright is the right to copy a thing. It is not a cut-and-dry law. I can tell you not to sell my work. I can’t sell your work without your permission. But…and here is the kicker…there is also something called fair use. Fair Use means—roughly—that if I am not making money from your work, I can use short quotes, etc. in a fair way without having to get your permission.

The current AIs exist as they do because of a broad interpretation of Fair Use.

Basically, the argument goes something like: well, the picture is available online, right? So my AI can look at it.

Only…

This isn’t really true. Pictures are “published” all over the internet. But I can’t post them on this substack, unless I own the rights; I have acquired the rights; or they are in the public domain.

The idea that Fair Use includes having my AI scan them? That is not in any way set in stone.

Fair Use is defined by the courts. All that would be needed would be for the courts to clarify that Fair Use does not include “scanned by an art AI.”

What would happen then?

Well…it depends on how strictly the courts interpreted it. If they were strict, all the AIs would have to be stripped of their current info and retrained only on public domain and rights-purchased art. If the interpretation were less strict, they would apply the ruling henceforth.

So, what would happen then?

The companies who own the AIs would have to acquire the rights to the art they wished to scan.

…which means, they would have to pay for it.

So the AIs charge a subscription fee (or raise their current fee a little.) Authors and others who need inexpensive art pay the subscription fee (which hopefully won’t be too high when spread over thousands or even millions of people) and the money collected could be used to…buy art.

Giving artists a new market.

A win-win for artists and authors.

Will that happen? Maybe. Maybe not. Truly, nowadays, we don’t know which way the laws will jump.

But I do hope and pray that a solution can be found that is fair to all sides.

What are your thoughts? How do we harness the potential of AI art without harming the artists whose work the AI scanned to come into being?