To the extent that you do not control a physical paintbrush, you lose your claim to copyright.

If you left a wet brush on a piece of paper and came back the next day to find the wind had blown it across the paper leaving a paint streak, that paint streak could not be copyrighted. You fully relinquished control of the brush to the wind.

In dealing with computers, the concept of “random” isn’t real.

Arguably the same is true of the wind. So to claim copyright, you cannot relinquish control to an inanimate object. Not to the wind, not to an AI.

Being in control does not mean achieving what you “want” or intend.

You are in control of your car, even if you unintentionally hit a tree. Likewise, Pollock controls his paintbrush, it is held by his hand which only he can move. If he flicks paint on his friend’s new jacket that might not be his intent, yet he is still 100% responsible for that outcome.

You directly control every pixel on your paintbrush, whether you want to or not. Who else controls it? It can only move when your mouse moves, which can only move when you cause your hand to move.

In contrast, you have some control over MidJourney output, but not direct control. Something could appear in the output that you did not cause.

Movies aren’t made solely by the director, but certain requirements must be met before one can claim copyright. Hundreds of people can offer their input but not be eligible for copyright, because offering input is not sufficient. There must be some direct control over an element of the output, whether that’s the cinematography, writing, or soundtrack.

It’s true that inanimate objects can’t claim copyright but that does not remove the requirement for direct control. If no human has direct control then the rights revert to public domain, for example no human has direct control of a sunset so a sunset cannot be copyrighted.

I think your approach would not work in practice. The test is not how it plays out when people are cooperating, but what happens when there is a dispute. And if the principle is “providing some input gives ownership” then the photographer, photographer’s assistant, agent, employer, and employer’s ex-wife will all sue each other over ownership.

In the music industry, you need to actually perform a piece to claim performance credit or specify the verses of a song that you personally wrote to claim writing credit.

However, when I start to force my will upon the photographs,

This sounds like a very easy test for an employer to pass. They force their will simply by telling you what to shoot.

But I gather that you won’t give them ownership quite so easily, they need to control every aspect of how you take the photos and thus reduce you to a “tripod”.

You can’t have two standards. Which is it? If merely exerting will is enough, then employers always own what photographers produce. If some degree of independence beyond a tripod allows the photographer to claim ownership, then AI users can’t claim ownership.

Can you articulate a single principle that is valid for both employers and AI users?

Why do you say your employer has no intent? They hired you with a particular product in mind after all. And they can do everything that you do with an AI: evaluate the results and tell you to try again.

What, specifically, do you do with an AI that an employer cannot do with a photographer?

How is your employer’s contribution to your photo shoot fundamentally different from your contribution to an AI generated work?

Copyright law is absolutely based on human exceptionalism, because it is meant to incentivize humans.

You may not like it, but legally copyright is not based on intent. That’s why if a couple hired you with the intent to shoot their wedding then they do not have copyright over your work. As a photographer you control the photos and thus retain copyright even when the intent of your photos is dictated by your employer.

The functional relationship between the employer and the photographer is basically the same as the relationship between the AI user and the AI.

Copyright doesn’t cover the output of training. But AI companies are being sued over training input.

If you want to download a bunch of images from the Getty catalog, you need permission from Getty. If you don’t have their permission and download them anyway, you can be sued. It doesn’t even matter whether those images are used for training or some other commercial purpose unrelated to AI.

You’re basically arguing that you can’t copyright every hair on the head of your model. And you’re probably right!

Imagine I published a photo that was exactly like yours, except I edited the model’s hair color. Even though my image is not identical to yours, it has the same model, pose, lighting, framing, etc. These were all things that you intentionally controlled. You could argue on that basis that I violated your copyright.

Now imagine I published a photo with a different model, different lighting, different framing, different background, different everything except, by chance, the hair on my model’s cheek matched the hair on yours. If you admit that you didn’t even try to control that, you would have a much harder time proving I violated your copyright.

Likewise, suppose my painting of a flower vase contained a drop of paint splatter that by chance matched the fine texture of a drop on a Pollock painting. Pretty unlikely that would be a copyright violation.

To the extent that an artist gives up control of their work, they lose the ability to copyright it. The extreme case is the monkey selfie, where the artist (initially) admitted they had no control over the output and thus no basis for copyright.

In your edited photos, a judge can point to any part of the photo and ask, “In this particular part of the photo, why is there this particular hue?” And you can answer, “Because I desaturated it or I adjusted the tone curve or I snapped the photo when I saw that hue in the viewfinder”. There is no possibility that 100% desaturation can result in any color other than grayscale. There is no possibility that a desaturation slider will sharpen the image instead of desaturating it. You know what will happen every time you make an edit. That’s creative control.

In an AI generated photo, at some point the prompter will answer “Because that’s what the AI produced after my prompt, and I accepted the result”. In other words, in some parts of the image the prompter could not predict what the result of a prompt would be, but they approved of the result after the fact. It’s entirely possible that a prompter could get unexpected results from their prompt. That’s direction, not creative control.

Because in a Jackson Pollock painting, the artist was in complete control of his paintbrush as it swung through the air. Not to mention the choice of brush, the amount of paint, the color, etc. If there is a blue streak in the upper left, it’s because Pollock wanted a blue streak in the upper left.

An AI prompt is more like handing your camera to a passerby in Paris and saying, “Please take a photo of me with the Eiffel Tower in the background”. If your belt is visible in the photo, it’s because the passerby wanted it there. That’s why the passerby, not you, has a copyright over the result.

If this is an actual photograph, then you can copyright the lighting, perspective, and framing of the photo. Anyone can make an image with the same model though.

If this is AI generated and you directed the AI to change the lighting and perspective, then no you still can’t copyright any of it. Giving direction is not the same as having control.

Ansel Adams has a copyright because of the creative control he had over his photos, such as in lighting, perspective and framing.

Artists generally cannot copyright AI output because they do not have a comparable degree of creative control. Giving prompts to an AI is not sufficient.

Yes, companies can copyright specific pigments

No, you cannot copyright a pigment. Companies can use colors as trademarks, but that just means that competitors can’t use the color in a way that would confuse customers. For example, you can’t start a courier service with vans that are the same color as UPS vans, because that might confuse customers.

You are still free to use that color in ways that are unrelated to UPS, for instance as an eye shadow.

Patents are another matter entirely. You don’t patent the color, but you might be able to patent the media (e.g. a new formula for quick drying paint).

you can copyright the product it produces, as evidenced by the wealth of food and drinks that are protected by law from being copied.

No, you can neither copyright a recipe nor the food or drink it produces.

Food and drink is only protected by trademark law. You are free to make a burger that tastes exactly like a Big Mac, you simply can’t call it a Big Mac.

Copyright covers your creative expression.

For example, you draw a superhero named “LemmyMan” and post it online. All of your creative choices are protected. If someone made another LemmyMan with a different caption, they would be violating your copyright because you created everything about LemmyMan, not just the caption in your drawing.

Now suppose you take a photo of Mount Everest. Mount Everest is not your creation, but the choices of lighting, foreground, and perspective are. Someone could not copy your exact photo, but they could take a different photo of Mount Everest making different creative choices.

The same is true of taking a photo of work in the public domain, like the Mona Lisa. If you make no creative addition to the Mona Lisa in your photo, then you have no copyright at all. If you put some creativity into your photo, like some interesting lighting, then those creative elements are protected. But anyone else could still take a photo of the Mona Lisa with different lighting, the subject itself is not under copyright.

Now suppose you tell an AI, “Draw me a superhero”, and it outputs ChatMan. If you make no further creative additions, then you have no copyright at all. But suppose you add a caption to it. Then the caption is your creative expression, so that is protected. But the rest of ChatMan is not, it’s in the public domain just like the Mona Lisa. Anyone else can make their own version of ChatMan that’s exactly the same minus your caption, because the underlying subject is not protected.

You would have pressed it to retrieve a personal item? Seriously? Like if you’re visiting a factory and your phone fell on the assembly floor you would run to the first red button you could find and press it without asking anyone? If so, please never get on an airplane.