More interesting to me is the "derivative work" concept. If a human sits down with a novel, reads it cover to cover, then writes their own novel which broadly has the same characters following the same plot in the same setting, but with slight differences in names and word choice, is that new work a derivative of the first for copyright purposes? What if they do the same thing for code? What if an AI does either or both of those?
IP courts will have some truly novel questions before them this century.
Copyright does not cover ideas, period. If you write your own novel and use your own word choices, even if you copy the plot structure exactly and the same character names while writing a new book, it’s not even considered a derivative work under the law, it’s a new work. Copyright covers copying the fixed work itself. You aren’t in violation of copyright unless you copy the words themselves.
The flip side is that this is why the article’s discussion about randomness and monkeys on typewriters is irrelevant to copyright law. It’s a copyright violation to produce the same “fixation” no matter how you do it. If you generated a random sequence of characters, and it happened to match a NYT best selling book, you violate the book author’s copyrights, and claiming it was random isn’t a viable defense. Intent to copy can make it worse, but lack of intent does not absolve. There is precedent for people coming up independently with the same songs and one being successfully sued.
Do note that there are other laws that might cover plagiarism of ideas, trademarks, code, etc., copyright isn’t the only consideration, but copyright seems to be often misunderstood. We definitely have some novel questions because of the scale of AI’s copying, the nature of training and the provenance of the training data, and because of AI’s growing ability to skirt copyright law while actually copying.
That's not really true. Copyright protects named characters if they are sufficiently distinctive, though there's nothing to stop you from creating an identical character with a different name.
It is really true, but yes there are some specific exceptions. In general: “Copyright protection does not extend to names, titles, short phrases, ideas, methods, facts, or systems.” https://www.copyright.gov/engage/writers/
You’re right that in certain limited circumstances, copyright will protect fictional characters. To protect a character, the character must be “well delineated”, and this has proven to be a pretty high bar. https://en.wikipedia.org/wiki/Copyright_protection_for_ficti...
You still seem to be ignoring derived works a bit. For example, if I downloaded a copy of "Harry Potter" and replaced every "Harry" with "Harvey" and every "Potter" with "Plumber", my new book "Harvey Plumber" would be a derived work from the original, meaning I would not have the right to sell or distribute the new work, even though it wouldn't be exactly the same.
What if I did something similar, but rather than a simple Ctrl-H replacement, I asked an LLM to rewrite each paragraph in different words? What if I did the rewrite myself, by hand? Is there a difference? If so, why? If not, why not?
The right to make derived works is covered by copyright law. It’s not legal to play madlibs on something and call it a derived work unless you already have the copyrights. If the edit distance is too small, proving infringement isn’t hard. If you change more words, you’re still in violation of copyright on originality grounds, but it might be harder for someone to prove it.
The LLMs question is more complicated. If you ask AI for a rewrite of a specific work, that’s infringement on grounds of originality. It’s also infringement when you don’t have the rights to the work that you feed to the LLM. This is part of the debate over AI training, and is covered in the Copyright Office’s draft on generative AI under the Prima Facie Infringement section https://www.copyright.gov/ai/Copyright-and-Artificial-Intell...
AI companies aren’t arguing over derived works, they are trying to get approval to classify AI training as Fair Use, because they know they are infringing existing copyright law. The Copyright Office might end up allowing it and changing the law.
IP courts will have some truly novel questions before them this century.