News Mickey Mouse and Darth Vader Smoking Pot: AI Image Generators Play Fast and Loose with Copyrighted Characters

[martinst68]

I tested six leading AI image generators to see how they handle requests to draw copyrighted characters, including asking for those characters to do inappropriate things.

Mickey Mouse and Darth Vader Smoking Pot: AI Image Generators Play Fast and Loose with Copyrighted Characters : Read more

Copyright infringment is not creating images of works, its using / publishing images that are copyrighted.

I can create batman images all day long, using a pencil or AI. I (and everyone else) are not violating anything by doing so.

Tools will continue to improve, I'm old enough to remember photocopy machines demonized.

Copyrighted material already has the rules and regulations to protect them. Having tools that can create images (copyrighted or not) does not infring or change that.

 

[Countess_C]

I don't like Mickey Mouse, but the pic of him in a turtle neck sweater, looking serious and smoking, made me laugh. 😆

I feel a little sad that I can't get some of the random-looking "ugly" toys. They need hugs. 🙁

 

[wrerkec]

I think what's missing is a message. If the images were used to highlight some sort of hypocrisy of the Disney corporation, then it could work. However, Just having Mickey drink or use drugs isn't quite enough to count as satire, IMO. At least, I wouldn't want to try and defend those images in court. Would you?

Absolutely, and I could find thousands of lawyers in the US to make that argument happily. US Fair Use laws are well established by the Supreme Court. The argument would be very strong. Together with freedom of speech it's a slam dunk. As long as the Creator isn't selling the artwork publicly for profit.

This also is illegal in many countries if you make this picture public. In my country:

If you make this picture public this is indusing to all that see this picture.

That's a problem for countries who exist in the 13th century. They need to catch up with modern civilization. No court in the US will find that simply showing someone smoking is an inducement. If so a movie showing a bank robbery would be illegal, which is laughable.

 

[YouFilthyHippo]

This also is illegal in many countries if you make this picture public. In my country:

If you make this picture public this is indusing to all that see this picture.

Ok, but that issue has more to do with the laws surrounding narcotics, not copyright itself

 

[George³]

Ok, but that issue has more to do with the laws surrounding narcotics, not copyright itself

Mmm...yes. About copyright:

Art. 4. The following are not subject to copyright:

1. (suppl. - SG No. 21 of 2014) normative and individual acts of state governing bodies, the acts of the courts, as well as their official translations;

2. ideas and concepts;

3. folklore works;

4. news, facts, information and data;

5. (new - SG No. 100 of 2023, in force from 01.12.2023) materials obtained by reproduction of works under Art. 3, para. 1, items 5 - 10 with expired copyright.

 

[bit_user]

In the case of both the tattoo example and AI generated art, neither of these are realistically substantial threats to the profitability of the original. The majority of users have no intention or expectation of profit, so there is no likely market effect.
...
Disney doesn't make all their Mickey money on pictures, so if I used his likeness, made alterations (like the previous example of wings) and made him fight Mighty Mouse in an otherwise original piece there would be little threat to Disney's profits, even if I attempted to sell the art.

They sell merchandise, movies, and experiences (i.e. theme park visits) which incorporate the character. If people are creating a flood of content which alters the popular perception of Mickey Mouse or other Disney characters, it can affect the profitability of Disney's products. Therefore, it would pose a business threat, even for uses which don't directly compete against Disney. That's what they would argue, I expect.

Furthermore, copyright law doesn't say that you have to gain a material advantage, in order for copyright to be enforced. It gives full discretion to the rights owner. The only place where material harm tends to enter the picture is in the context of a lawsuit, where a disinterested party cannot sue. In other words I can't sue you for violating someone else's copyright, because I have no material interest in the matter.

Disney owns the IP of mickey mouse. They own the character. I create a photo of mickey mouse smoking marijuana. That photo is now a unique work of art. My work of art I created isn't mickey mouse. It's mickey mouse smoking marijuana. It's content outside the intended use of the original creation of mickey mouse and what stands to reason that disney would use its creation as intended. Therefore, it is a unique work of art, and I shouldn't be held liable for copyright infringement for that.

It's a derivative work. If it gains value or meaning through its resemblance to Mickey Mouse or harms a business use of the Mickey Mouse by affecting popular perception of the character, then Disney has a case and I wouldn't want to be in your shoes.

If I assemble a development team, and make my own Mario game from the ground up, and release it for free. This should be allowed, so long as I am not making a profit from it. I don't sell it. I release it, open source, for free. This should be allowed. Because all the ideas in the game were MY IDEA, and I'm not making money on it

If your characters have too much resemblance to Nintendo's Mario that they seem derivative, no. If there are merely incidental similarities, then you're probably okay. Gameplay mechanics cannot be copyright, so you can make a similar game to Super Mario Bros probably without much risk.

https://en.wikipedia.org/wiki/SuperTux
​

 

[bit_user]

About mickey mouse creator. 1928. I didn't know how years Copyright is valid and why patent trolls has rights when they isn't creators of patented art or inventions?

US Copyright expires after 95 years. For a while, they kept extending it, but it seems this 95 year limit has finally stuck. That puts the version of Mikey seen in Steamboat Willie in the public domain. Only that version, however. Not all depictions of Mickey Mouse.

https://en.wikipedia.org/wiki/Steamboat_Willie
​

 

[bit_user]

Copyright infringment is not creating images of works, its using / publishing images that are copyrighted.

I can create batman images all day long, using a pencil or AI. I (and everyone else) are not violating anything by doing so.

That's incorrect. These are examples of derivative works.

I'm old enough to remember photocopy machines demonized.

They still are. It's just that there are bigger threats, because so much more copyright material now exists in digital form that photocopy machines are no longer a high priority.

 

[CmdrShepard]

I create a photo of mickey mouse smoking marijuana. That photo is now a unique work of art.

That's called derivative (or composite) work, and if your creation is distinct enough from the original you can be granted separate copyright to your contribution. However, that doesn't affect the original copyright of the Mickey Mouse itself which remains copyrighted. Also, even if your artistic changes are big enough to warrant separate copyright Disney can still block you if they consider your use of their IP as damaging.

There is also a thing called fair use.

Yes, fair use exists, but it doesn't mean what you think it means.

Here is a good explainer when it comes to cakes (cookies):

https://www.lilaloa.com/2020/05/copyright-trademark-cookie-decorating-questions.html#quest8

Example: A 6 year old wants a photo of Mario printed on their cake for their birthday.

This has nothing to do with fair use.

Bakery doesn't have a license from Nintendo to sell cakes with Mario character printed on them. You can bake your own cake with Mario on it and you will be fine in a private venue or at home, but baking and selling without a license is illegal under current law.

If I assemble a development team, and make my own Mario game from the ground up, and release it for free. This should be allowed, so long as I am not making a profit from it.

It doesn't matter whether you are making profit or not -- by releasing a Mario themed game you are depriving the copyright owner of the opportunity to sell their own IP. Who is going to buy their Mario game if you give yours away for free?

There are four factors which determine whether something will be considered fair use. Here is a good explainer by an actual lawyer:

Measuring Fair Use: The Four Factors

Unfortunately, the only way to get a definitive answer on whether a particular use is a fair use is to have it resolved in federal court. Judges use four factors to resolve fair use disputes, as ...

fairuse.stanford.edu

But if I want to use AI to make Mario sit on my couch and play Nintendo, and Mario is playing the game, that isn't damaging to the IP itself and doesn't slander the company. I don't make money off the video. I think this should constitute fair use.

The point of copyright is that the owner gets to decide which use cases they consider OK. They can be challenged in court under "fair use" doctrine and sometimes they will lose but most times they will win.

Any time a new idea is brought to life in art form, there shouldn't be any copyright issues, unless it contains IP and the creator is making money off of it.

With AI models this is the exact case -- AI model files contain information to accurately reproduce millions of copyrighted works, and that information has been included without owners' permission and without licensing during training. Furthermore, those AI models are used for commercial purposes (the companies who trained them are selling subscriptions). It doesn't even matter what the end user creates by using them -- the source material is copyrighted and it is used without permission and payment as an incenitive for end users to subscribe to those companies' service.

In the case of the darth vader/mickey mouse thing. The unique work of art is the idea that the creator concieved. It's not just mickey mouse/darth vader

There's nothing original in that. It literally uses two premade characters and poses them for a photo. That's not art, nor it adds or changes anything substantial from the original works.

 

[YouFilthyHippo]

Bakery doesn't have a license from Nintendo to sell cakes with Mario character printed on them. You can bake your own cake with Mario on it and you will be fine in a private venue or at home, but baking and selling without a license is illegal under current law

I agree with this if the bakery is pro-actively making a point of mass-producing and selling them, but its different when a 6 year old specifically asks for a specific photo for celebrating their birthday in the privacy of their own venue with their other 6 year old friends and their parents. They make that one cake for that one kid/family. If that's illegal, it shouldn't be. This should fall under fair use. The family of the birthday boy isn't intending to make a profit of someone else's idea. I'd hate to be a parent explaining to the kid that his dream cake is ruined because of red tape that he probably wouldnt understand. To an adult, its just a cake. Get a different one, who cares. But to a kid, it can be so much more than that, and that shouldn't be ruined over silly red tape.

It doesn't matter whether you are making profit or not -- by releasing a Mario themed game you are depriving the copyright owner of the opportunity to sell their own IP. Who is going to buy their Mario game if you give yours away for free?

Ummmmm, mine would be substantially different than the paid one. There are two mario games, a paid one and a free one. I gave mine away for free. You can buy the other one if you want too and have 2 different games. Yes?

The point of copyright is that the owner gets to decide which use cases they consider OK. They can be challenged in court under "fair use" doctrine and sometimes they will lose but most times they will win.

And I think they should lose every time unless (a) someone is making money of their IP, or (b) someone is damaging to their IP or using it for slander purposes (refer to my original example). Use of IP that is not at the expense of the original creator should be allowed.

"With AI models this is the exact case -- AI model files contain information to accurately reproduce millions of copyrighted works, and that information has been included without owners' permission and without licensing during training. Furthermore, those AI models are used for commercial purposes (the companies who trained them are selling subscriptions). It doesn't even matter what the end user creates by using them -- the source material is copyrighted and it is used without permission and payment as an incenitive for end users to subscribe to those companies' service."

And in this case, the companies offering the subscription are making money off the product, which falls under (a) as I stated above.

"There's nothing original in that. It literally uses two premade characters and poses them for a photo. That's not art, nor it adds or changes anything substantial from the original works."

The originality isn't in the characters, its in the intended use/message sent by the photo and what the meaning is behind it. That's the unique work of art

 

[CmdrShepard]

They make that one cake for that one kid/family. If that's illegal, it shouldn't be.

That one cake for that one kid, and another cake for another kid, and... do I really need to keep going?

The family of the birthday boy isn't intending to make a profit of someone else's idea.

No, but the bakery is making a profit -- cake by cake.

But to a kid, it can be so much more than that, and that shouldn't be ruined over silly red tape.

You are invoking "think of the children!" here -- a plea for pity that is used as an appeal to emotion, and therefore it constitutes a logical fallacy. Law doesn't care about emotions, just facts.

Ummmmm, mine would be substantially different than the paid one. There are two mario games, a paid one and a free one. I gave mine away for free. You can buy the other one if you want too and have 2 different games. Yes?

Nope.

The very existence of your game deprives the copyright owner of the opportunity to sell a similar game.

Hypothetical situation -- copyright owner pays a developer studio to make a game. It pays publishers to publish and distribute the game. It pays a marketing firm to create an ad campaign. It pays designers to design merchandise, factories to produce it, and stores to stock it. Before their game is released, you release your game which turns out to have exactly the same mechanics and it targets the same demographics as their game.

Does it matter that your game is free if they lost a ton of money, and can't recoup any of the expenses because people can just download your free game made using their IP?

No it doesn't.

Use of IP that is not at the expense of the original creator should be allowed.

The point is -- you can't possibly know what is and what isn't at their expense. See the example above.

The originality isn't in the characters, its in the intended use/message sent by the photo and what the meaning is behind it.

So go ahead and enlighten us, what is the deeper meaning behind that photo?

All I see is two copyrighted characters involved in a controversial activity which in many countries around the world is still illegal and carries a jail sentence.

So, unless you believe that just including shock value is enough to turn something into a work of art (I don't, and that's why I never watched Game Of Thrones) that photo is worthless and devoid of any real artistic expression, deeper meaning, or hidden message.

 

[bit_user]

Thanks for your enlightened and enlightening posts. I agree with nearly all of your points.

So go ahead and enlighten us, what is the deeper meaning behind that photo?

I'm not a lawyer, but I think satire works as a defense against copyright infringement. The test is then whether someone can make a compelling argument in court. So, you're right to ask the question and dismiss arguments that would seem unlikely to convince a judge or jury.

 

[YouFilthyHippo]

That one cake for that one kid, and another cake for another kid, and... do I really need to keep going?

It's not like one kid comes in and asks for a Mario cake, then 9,000 other kids swarm in the next day and ask for one. It's not a systematic and organized cake decorating operation based on IP.

No, but the bakery is making a profit -- cake by cake.

They are making a profit off the cake, not the IP

You are invoking "think of the children!" here -- a plea for pity that is used as an appeal to emotion, and therefore it constitutes a logical fallacy. Law doesn't care about emotions, just facts.

It doesn't constitute a logical fallacy. The context should be covered by fair use

Nope.

The very existence of your game deprives the copyright owner of the opportunity to sell a similar game.

Hypothetical situation -- copyright owner pays a developer studio to make a game. It pays publishers to publish and distribute the game. It pays a marketing firm to create an ad campaign. It pays designers to design merchandise, factories to produce it, and stores to stock it. Before their game is released, you release your game which turns out to have exactly the same mechanics and it targets the same demographics as their game.
Does it matter that your game is free if they lost a ton of money, and can't recoup any of the expenses because people can just download your free game made using their IP?

Having the same game mechanics is not the same as making the same game. Beach Buggy Racing has the same mechanics as Mario Kart. If BBR was free, people still would purchase MK. If MK was free, people would still purchase BBR. If BBR used Mario characters, and bananas and shells, would people stop buying mario kart? Absolutely not. No one would be like "Well, BBR is free so I won't buy mario kart". That's retarded. Secondly, No two companies are going to coincidentally make the EXACT same game at the same time. You have a better chance of getting struck by lightning, winning the lottery, and having a bird unload on your head while walking outside all at the same time then you do of something like that happening. Let's build on that. Suppose I make a mario kart game and nintendo makes a mario kart. They charge $60 for theirs. Mine is free. My graphics will look different. They way the shells and bananas fly around will be different. The fire that comes out the back of the kart when a mushroom is used will be different. The tracks will be different. The sounds will be different. The menu layout will be different. 99.9999999999% of it will be different. Mine is free, Nintendo's is paid. They can download mine for free and then buy nintendo's, and now we have two completely different mario kart games. Nintendo didn't lose anything. I didn't take away anything from nintendo

"The point is -- you can't possibly know what is and what isn't at their expense. See the example above."

There is no expense. How's that? I haven't taken anything from them? I haven't deprived them of anything. What do they have that they didn't have before, that is tangible? and measurable? Nothing.

So go ahead and enlighten us, what is the deeper meaning behind that photo?

So go ahead and enlighten us, what is the deeper meaning behind that photo?
I don't know because I didn't make it, that doesn't mean it isn't there, it just means that I dont know about it

 

[bit_user]

There is no expense. How's that? I haven't taken anything from them?
I haven't deprived them of anything. What do they have that they didn't have before, that is tangible? and measurable? Nothing.

This is fundamental to the nature of Intellectual Property. Laws like copyright, trademarks, and patents exist to create a legal framework to protect it, because it doesn't work like physical property. The costs are invested in creating & marketing it. By creating a legal framework to protect IP, society has recognized its value and the need for such protections to sustain its creation. It underpins our current knowledge economy.

You can reject the notion of IP, but recognize that's a discussion ender. If you don't accept the basic concept, then we'll never agree on the particulars of how it's protected and managed.

Rejecting IP would pretty much mean going back to the middle ages, technologically. The history of copyright extends right back to the introduction (or mass adoption, perhaps) of the printing press.

 

[CmdrShepard]

It's not like one kid comes in and asks for a Mario cake, then 9,000 other kids swarm in the next day and ask for one. It's not a systematic and organized cake decorating operation based on IP.

Nonsense, there are tons of bakeries who do this daily. An example:

Mickey Disney Cake – Sweetened Memories Bakery

Just another WordPress site

sweetenedmemories.com

Notice how there is no mention that they are licensed to make Disney themed cakes.

They are making a profit off the cake, not the IP

Not really.

If the cake was not Disney themed it wouldn't have been sold so easily and at such a high price. Disney theme is changing the perceived value of the cake so yes they are profiting from the IP.

It doesn't constitute a logical fallacy. The context should be covered by fair use

Read up on logical fallacy and come back when you know what it means. Copyright owner decides what contexts are allowed, that's the law. The fact that you don't like it and want it to be different doesn't change anything.

(bunch of nonsense arguments)

It's pointless to even try to reply to this. If your game has Mario in it you are using Nintendo's IP and that's the end of it as far as the courts and current laws are concerned. Different color palette or different flame or whatever doesn't matter at all.

There is no expense. How's that? I haven't taken anything from them? I haven't deprived them of anything. What do they have that they didn't have before, that is tangible? and measurable? Nothing.

I already explained all that with an example, I am not going to repeat myself.

I don't know because I didn't make it, that doesn't mean it isn't there, it just means that I dont know about it

It also doesn't mean it is there -- it could be that a stoned incel in their mother's basement got an idea and thought it was funny and made it for lulz. That doesn't constitute art.

 

[YouFilthyHippo]

Nonsense, there are tons of bakeries who do this daily. An example:

Mickey Disney Cake – Sweetened Memories Bakery

Just another WordPress site

sweetenedmemories.com

Notice how there is no mention that they are licensed to make Disney themed cakes.

They are actively advertising this and making a point of commercializing their work. That is not the same as one kid walking in and asking for a cake

Not really. If the cake was not Disney themed it wouldn't have been sold so easily and at such a high price. Disney theme is changing the perceived value of the cake so yes they are profiting from the IP.

False. I walk into a bakery and ask for cake. They give me a price for a 2 layer cake and any image of my choice. The price remains the same regardless of what image I use. It's the same price either way. They are making money off the cake, not the IP

Read up on logical fallacy and come back when you know what it means. Copyright owner decides what contexts are allowed, that's the law. The fact that you don't like it and want it to be different doesn't change anything.

I never claimed the problem didn't exist, I just think it needs to be solved, by allowing something like the cake to be under the category of fair use. The cake example should constitute fair use. I dont know if it does or not, but it should, for many reason (i am assuming a particular customer walks in with an image they have chosen, not active commercialization and advertising, big difference)

It's pointless to even try to reply to this. If your game has Mario in it you are using Nintendo's IP and that's the end of it as far as the courts and current laws are concerned. Different color palette or different flame or whatever doesn't matter at all.

Lol. Everybody and their dog knows that BBR wouldnt exist without MK. Its clearly a blatant straight up full-out reskin. That's literally all it is. It's a reskin. Those developers are making money the MK IP. If MK didn't exist, BBR wouldn't either. It's clearly a rip from top to bottom, and is commercialized, advertised, and making profit. Its full-on legit the exact same game with a different skin. Yet somehow, this is allowed. But a 6 year old walks in with a mario image to a bakery and asks for 1 cake for use in their own home, and somehow have to navigate a bunch of lawyers for licensing in time for his birthday. WTF. Something is very wrong here