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We can use GANs to generate original images, but if I train my GAN using CC-BY-ND am I creating a derivative work? If I train with CC-BY-NC images (or even copyrighted images), do I have rights to use the output commercially?

Note that here I am referring to not the model parameters, but specifically the output images; if I generate an interesting image (like the dog/tennis ball hybrid on the linked site), can I legally put it up for sale on a stock photo site, for example?

Additional info: ImageNet, one of the popular training sets, has this to say about usage issues.

The images in their original resolutions may be subject to copyright, so we do not make them publicly available on our server.

And:

Researcher shall use the Database only for non-commercial research and educational purposes.

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A definite "maybe".

Before the explanation, a disclaimer: I am not an attorney.

Here's the pro-violation argument: you have no right to access those photos at all except under the license. Therefore any use you make of them has to comply with the terms of the license. Certainly if there are structures and portions of images which end up in the GAN image, then those fragments are derivatives of the original image, and thus in violation of CC-BY-ND.

However, here's the non-violation argument: a fair use exemption applies to "transformitive works", especially those that use the copyrighted work as a small minority of the final work. You would need an attorney to back you up on this one, as you'd be breaking new ground by applying the transformative works exemption to a GAN image (or an AI model), but it certainly seems like a valid defense.

However, there's also the moral argument: a bunch of photographers/artists/collectors put their work online for you to enjoy under specific license terms, partly to protect their livelihoods. Is having those images so important that you want to clearly violate the intent of the photographer, even if you're not technically infringing? And maybe endure an internet backlash if this use is found out?

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  • "If there are ... portions of images which end up in the GAN image, then those fragments are derivatives." - This part is correct, but the other parts are wrong. 'Using' an image that is distributed online does not need a license. The fact that they put it online is already a license for you to load it in your browser. The only theoretical objection would be whether you are allowed to, say, click "Save as" and copy it to your desktop in order to run some analysis programs on it. However, if the image is also CC-licensed, then even that is definitely allowed. – Brandin Dec 20 '18 at 6:01
  • Brandin: per the OP's description, these sound like libraries of images available as downloads, not images displayed on the web. – Josh Berkus Dec 20 '18 at 6:05
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    @Brandin They're CC-licensed, which means that some actions are permitted and some aren't. In CC-BY-ND, you can do pretty much what you want with the unaltered images, and the question would be if the processing constitutes alteration. In CC-BY-NC, you can do pretty much what you want as long as you're doing it for personal, not commercial, purposes. – David Thornley Dec 20 '18 at 17:56
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    In your non-violation argument, you seem to be referring to fair use as it exists in the US. The question of what amount of the work is the amount of the copyrighted work that is used, not the amount of the copyrighted work in the final work. If you're using an entire copyrighted work for commercial purposes, you're probably outside fair use. Fair use in the US is evaluated on a case-by-case basis, so even a lawyer will not necessarily be able to give a definite answer. – David Thornley Dec 20 '18 at 17:59
  • Point. Does "transformative works" argument exist in other countries? – Josh Berkus Dec 20 '18 at 22:04

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