Page Four of the Justice Department's OpenAI Brief Is About Not Paying Photographers
On September 1 the United States filed a twenty-page statement of interest in the consolidated OpenAI copyright litigation before Judge Sidney H. Stein in the Southern District of New York. Most of the coverage went to the national security section, and Nieman Lab summed the filing up as an argument that a New York Times win would threaten national security and hurt small newsrooms. The sentence that should concern anyone who hires a crew is on page four, in the part explaining why a ruling for the Times would hurt independent publishers. "Authors with limited resources can use LLMs to compete," the government writes, "(by, for example, using an LLM to generate an image to accompany an article—which otherwise might require a photographer or license)."
That parenthetical is the whole theory in miniature. The independent creator in the sentence is the writer. The photographer is a cost the writer gets to escape. Both of those people are independent creators working at the same scale. The brief counts one of them. I filed three water stories for Your Wyoming Link this August, headwaters in Wyoming down to the Fort Yuma Quechan Reservation near the Mexican border, and every frame in them exists because somebody drove to the place and stood in it. Jonathan Bowler telling me the Little Snake was running at its lowest flow in a hundred years of records is not a thing you can prompt for. Neither is the shot of the valley behind him.
The filing's other economic claim is that licensing fees "would disproportionately benefit legacy media outlets due to the sheer volume of their written publications," and that a licensing requirement would create "entry barriers that function primarily as large subsidies for old mainstream media companies." I have been on the small side of that transaction. Building John Johnson Reporting meant negotiating archive access with ABC and Disney chapter by chapter, tape by tape, and accepting that some of what we wanted would never clear. The companies holding the tape had the leverage and used it. That is a fair description of the market. It is also how I got the film. A market where large holders do better than small holders still pays small holders. The alternative on offer in this brief pays nobody.
The government appears to know this, and it says so in its own footnote. Footnote 13 concedes that "regardless of whether LLM model training on text articles constitutes fair use, both mainstream and independent publishers could enter (and have entered) into licensing agreements to provide developers with specialized access to real-time, pay-walled, proprietary, and other content and information." So the licensing market functions, and publishers of both sizes are already inside it. Ten lines higher, the same page calls licensing an entry barrier that subsidizes old media. The claim and the thing that undercuts it share a sheet of paper.
What would actually help an independent producer is a rights market with lower transaction costs. Clearing thirty seconds of tape can take months of email, and the cost of asking is the barrier at my budget level, far more than the fee at the end of it. Fix the asking and you help every creator the filing claims to be worried about. The filing proposes the other thing: remove the requirement to ask. That does lower my costs. It also deletes the line item that pays the person who shot the material. In every budget I have ever built, the photographer is the product.