Today, practically anyone with an internet connection can use artificial intelligence tools like DALL·E and Midjourney to generate increasingly-complex images. While many AI-enabled images have been created solely as personal experiments rather than for public or commercial uses, this new technology raises interesting questions related to copyright law. Who should own the rights to these creations? Are AI-generated images eligible for copyright protection? Will I get sued by an AI robo-artist soon? In this blog post, we’ll cover the answers to these modern questions.
In March 2023, in an effort to help clarify these issues, the US Copyright Office (the federal agency that oversees the copyright system) issued a public guidance statement regarding works that contain material generated by artificial intelligence technology. Put broadly, the USCO has determined that meaningful “human authorship” is required for AI-generated material to be eligible for copyright registration. While the USCO’s determination of what is sufficient to be “human authorship” will be made on a case-by-case basis, the USCO has specified that AI-generated material created solely in response to a prompt by a human will not be considered to have “human authorship” and, therefore, would be ineligible for copyright protection.
Do I own the AI-generated images created using my own text descriptions?
One of the earliest adopters of the DALL·E technology is the company Mixtiles. The home art startup’s Daydream service allows individuals to create AI-generated images based on their own text inputs. After customers enter their text prompts of what they want depicted in their artwork, Daydream presents variations of the scene in several different styles. After selecting their favorite image from the AI-generated options, customers can then have their one-of-a-kind art framed and shipped to their homes. In regard to this situation, the USCO has advised that the art generated by AI from text prompts would likely not be eligible for copyright. However, even without a copyright, the creator-customers of this kind of AI-generated art would still have full usage, reproduction, and display rights of their pieces.
When would AI-generated images be eligible for copyright protection?
On the other hand, work that contains AI-generated material with sufficient human authorship may be able to establish a copyright claim. For example, in the recent case of Zarya of the Dawn, the USCO approved the copyright registration of a graphic novel which included images generated using Midjourney. Because the overall composition of the AI-generated images and captions were ultimately selected and arranged by a human, the USCO found sufficient human authorship and granted the copyright for the novel to the creator. Conversely, the USCO declined to allow copyright protection to the individual AI-generated images themselves in the novel. Accordingly, if you have done significant work to modify an AI-generated image — for example: using Photoshop to edit elements and adding text to the art — you have a stronger basis to apply for copyright protection of your work.
Can I get sued by an AI system with a copyright claim?
Thaler v. Perlmutter is a copyright case involving AI-generated artwork. The case revolves around whether an AI system is entitled to a copyright for art it created. In 2018, computer scientist Dr. Stephen Thaler applied for a copyright for a piece of AI-generated artwork, naming an AI-system as the artwork’s creator. However, the USCO rejected the application and noted that works must have a human creator to be copyrightable. In protest, Thaler filed suit in federal District Court where it is currently being reviewed as of April 2023. For now and unless that pending judgment says otherwise, an eligible “author” must still be a human being, so there is no current risk of being sued by an expressive robot with a copyright claim yet!
We are still early in the world of AI-assisted and AI-generated art and the USCO has continued to seek feedback and modernize guidelines. While authorship and ownership can be challenging to understand for many, we are your Orange County trademark and business attorneys and are available to discuss these issues and more through our contacts at (714) 942-2225, or via email firstname.lastname@example.org, or schedule an appointment.