Comment by Calavar
What happens when a researcher makes a generative art model and publicly releases the weights? Anyone can download the weights and use it to turn a quick profit.
Should the original research use be considered legitimate fair use? Does the legitimacy get 'poisoned' along the way when a third party uses the same model for profit?
Is there any difference between a mom-and-pop restaurant who uses the model to make a design for their menu versus a multi-billion dollar corp that's planning on laying off all their in house graphic designers? If so, where in between those two extremes should the line be drawn?
I'm not a copyright attorney in any country, so the answer (assuming you're asking me personally) is "I don't know and it probably depends heavily on the specific facts of the case."
If you're asking for my personal opinion, I can weigh in on my personal take for some fair use factors.
- Research into generative art models (the kind which is done by e.g. OpenAI, Stable Diffusion) is only possible due to funding. That funding mainly comes from VC firms who are looking to get ROI by replacing artists with AI[0], and then debt financing from major banks on top of that. This drives both the market effect factor and the purpose/character of use factor, and not in their favor. If the research has limited market impact and is not done for the express purpose of replacing artists, then I think it would likely be fair use (an example could be background removal/replacement).
- I don't know if there are any legal implications of a large vs. small corporation using a product of copyright infringement to produce profit. Maybe it violates some other law, maybe it doesn't. All I know is that the end product of a GenAI model is not copyrightable, which to my understanding means their profit potential is limited as literally anyone else can use it for free.
[0]: https://harlem.capital/generative-ai-the-vc-landscape/