The Transformative Factor: GenAI & Fair Use
Fair use refers to the copying of copyrighted material done for a limited and “transformative” purpose. According to Stanford, the four factors to consider are:
- the purpose and character of your use,
- the nature of the copyrighted work,
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
An important indicator of fair use is the “transformative factor,” or whether the original material has been used to help create something new or merely copied verbatim into another work. When taking portions of copyrighted work, ask yourself the following questions:
- Has the material you have taken from the original work been transformed by adding new expression or meaning?
- Was value added to the original by creating new information, new aesthetics, new insights, and understandings?
To further explore this factor, I conducted an experiment. I created a pencil and charcoal sketch (see above), uploaded it to my favorite generative AI or GenAI tool and used the drawing in a prompt. I chose the following image from several iterations (thumbnails).
Now, I addressed the question: Has the material you have taken from the original work been transformed by adding new expression or meaning? None of the images I created using GenAI look like my original sketch. The output added new expressions while keeping certain aspects of the sketch. This was made possible through prompts. Next, I decided to try an older pencil sketch and chose a couple of GenAI images based on the image prompt.
The second experiment addresses the second question: Was value added to the original by creating new information, new aesthetics, new insights, and understandings? In addition to using uploaded sketches, I used words such as intaglio engraving (art technique) and a subject (actress N’Bushe Wright). The key words in the prompt lead to new information and, I’d argue, a new aesthetic that really isn’t about copying the original work.
The image directly above was initially generated in Midjourney, then enhanced in Adobe Photoshop using a “neural filter”. PS Neural Filters make advanced retouching and style transfer accessible. The filter brings the sketch to life, giving it depth and color. I also use Generative Fill to add and content to a GenAI image (usually without adding text prompts).
The style and other visual elements of the image above led to creation of the prompts I used for the other images presented here. There’s some of me (my sketches) in the GenAI images but there is also the transformative factor that drives the process to create something new or different from the original works. I’m a big fan of the remix, so this is what keeps me excited about the ongoing developments in GenAI, esp. Midjourney.