Copyrighted by Robots? Exploring the Intersection of AI and Creative Ownership

After the ownership of copyright of an NFT has sparked virulent debates in the legal world, it is becoming increasingly clear that artificial intelligence is not done disrupting intellectual property. 

 

At the center of the latest discussions lie ChatGPT, the advanced chatbot developed by OpenAI that can not only answer any question, but also summarize complex documents and even produce essays of the highest caliber. While the issue of copyright for AI-generated text is undeniable, as machines can use data that may include copyrighted material without properly citing sources, this article will instead focus on the emerging landscape of AI-generated images which blur the lines between human and machine creativity. 

 

With the rise of AI technology, the very foundations of creative ownership and copyright law are being called into question, leaving us to wonder: what role will AI tools like Dall-E, Crayon or Midjourney play in the future of intellectual property?

Is it Possible to Claim Copyright Over AI Generated Images? 

 

Copyright protection is only provided to works created by humans, not works created by non-human sources such as animals or machines. According to recent guidelines published by the Copyright Office, it is possible to claim copyright if the AI generated material contains sufficient human authorship (that is, human selection and arrangements).^[1] The Copyright Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author’s “own original mental conception, to which the author gave visible form.” The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work, which results necessarily in a case-by-case inquiry. 

 

In any case, inputting a prompt into an AI program is not enough to constitute human authorship as it is the machine which determines how those instructions are implemented in its output.^[2] Midjourney describes prompts as “influencing” the output but does not suggest the prompts dictate or control it. 

 

Nevertheless, human selection and arrangement of various AI generated images could receive copyright protection as long as the human authorship requirement is met. In February 2023, the Copyright Office concluded that although the Midjourney generated images themselves could not be protected by copyright, a graphic novel comprised of human-authored text combined with images generated by the AI service constituted a copyrightable work.^[3] 

 

In other words, copyrightable AI happens where the final product is not the primary result of a computer program, but rather the result of artistic choices and skills. How much input on the process is permitted by AI will be determined on a case-by-case basis, but it can be confidently stated that the greater the AI influence the less likely the work will be protected by copyright law.

 

Protecting Your Creative Assets: A Guide to Avoiding Intellectual Property Infringements When Using AI Image-Generating Tools

 

The recently enacted Copyright Office rule requires applicants to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work. Applicants must also correct a previously submitted or a pending application that omitted the fact that the work contained AI-generated materials. It is therefore important that a record be kept of any AI content that resulted in works because of this disclosure requirement.

 

The issue of whether the use of AI generated images presents a risk of an infringement claim is not straightforward and may depend on various factors, such as the nature of the original AI-generated image, the extent to which the new image is derived from the original image, and whether the original image is protected by copyright.

In general, if the AI-generated image is not protected by copyright, taking inspiration from it is unlikely to cause any issues. However, if the AI-generated image is protected by copyright, creating a new image that is too similar to the original could potentially infringe on the exclusive rights of the copyright owner. As such, it is important to carefully consider the nature of the original image and the extent of any potential copyright protection before using it as a source of inspiration for new creations.

 

However, using generative models to generate artwork in someone's style is not likely to result in legal liability unless distinctive elements of their art are reused. If a prompt closely recreates a particular artwork, it may be riskier. A Stanford study provides an example of a prompt like "Campbell's Soup Cans by Andy Warhol in the Style of Picasso" which may be more problematic if it closely mimics Warhol's original work. However, if the prompt is more generic, such as "A random dog in the style of Andy Warhol," it is more likely to be considered fair use, provided that the resulting artwork is sufficiently transformative from Warhol's original works.^[4]

 

Moving Forward: Balancing Innovation and Copyright Protection 

Using AI image-generating tools for ideation can be a great way to explore different visual concepts and generate ideas for creative projects. However, there are some IP issues to consider.

Firstly, it is important to understand the terms and conditions of the specific AI image generating tool used. Some tools may have restrictions on how you can use the generated images, while others may allow for commercial use without attribution. Always refer to the Terms of Service. Secondly, it is possible that the images generated by the tool may infringe on existing intellectual property rights. This could occur if the tool is trained on copyrighted images, or if the generated images are too similar to existing works. In such cases, using the generated images could potentially expose the user to legal risk.

To avoid the potential pitfalls of infringing on intellectual property rights, it is essential to leverage AI image-generating tools for inspiration and idea generation, but ultimately create original works that reflect your own unique perspective and creative vision.

ASR

^[1] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, Copyright Office, March 16^th, 2023

^[2] See Prompts, Midjourney, https://docs.midjourney.com/docs/prompts

^[3]  U.S. Copyright Office, Cancellation Decision re: Zarya of the Dawn (VAu001480196) at 2 (Feb. 21, 2023), https:// www.copyright.gov/docs/zarya-of-the-dawn.pdf. 

^[4] Foundation Models and Fair Use, Peter Henderson, Xuechen Li, Dan Jurafsky, Tatsunori Hashimoto, Mark A. Lemley, Percy Liang, Stanford University, March 29, 2023.