AI Copyright
June 3, 2023

AI and Copyright: Understand the Current Situation and the Potential Challenges

What’s the conversation around Copyright?

The harsh truth is that copyright for AI-generated content is currently a gray area - We simply don’t have clarity on whether it can be owned for marketing and branding purposes. There is another aspect around the ethics of AI-generated content, but that’s an entirely different conversation. The questions that arise here:

  • Who owns an AI-generated image?
  • Do we know how these algorithms work? Which artist’s data is being harvested?
  • If one word is used from an author's work to train the algorithm, can they claim copyright?
  • Since the work generated by AI is derivative of the original work, can it be categorized as fair use instead of copyright infringement?
  • Is there a need for legal restrictions on how AI art generators are trained, particularly with data scraping?
  • If an artwork has been commissioned by a client, which is then used to train AI, who owns the copyright – the artist, the client, or the AI?
  • Can we create mutual agreement between the developers training AI image generators and the artists whose work is being used for that training?

We don’t have answers to these questions yet, as this field is still in its nascent stage. Until these are answered, companies need to tread carefully. 

It’s raining lawsuits

There has been a surge in lawsuits concerning AI-generated art.

The primary reason for these lawsuits is the use of datasets to train generative AI models – original art scraped from the internet without the consent or even knowledge of the artist/creator. 

And there is some precedent for this, albeit in a different setting. Remember the Naruto vs Slater case?

David Slater, a British wildlife photographer, had left his camera unattended on the island of Sulawesi when a curious Indonesian black crested macaque, Naruto, clicked several selfies. Slater published these images in a book, but a dispute arose with organizations claiming that the photo was in the public domain due to the ownership lying with Naruto - as it was the monkey who clicked the photo and not the photographer.

PETA argued that “the right to own and benefit from the copyright in the Monkey Selfies in the same manner and to the same extent as any other author.”

However, the US Copyright Office stated that it “will refuse to register a claim if it determines that a human being did not create the work.”

One of the selfies “clicked” by Naruto that was under the copyright lawsuit.
Selfie by Naruto that was under the copyright lawsuit, source

The Office is maintaining a similar claim regarding AI-generated artwork.

This might be relevant to the Midjourney Class Action lawsuit where a group of artists is claiming copyright infringement. The outcome of this lawsuit could have far-reaching consequences for AI-generated content. 

Can you copyright AI Art? 

Let’s look at a few examples – 

  • Consider the case of the graphic novel “Zarya of the Dawn,” which was granted partial copyright protection. Initially, the US Copyright Office had granted full rights to the author Kris Kashtanova. However, when the Office found out that Kashtanova had used Midjourney, an AI art generator, they initiated a second review. 

    The artist claimed that she had instructed Midjourney using hundreds of descriptive prompts for the final output. However, the Office said that prompts are closer to “suggestions” than “commands,” hence the result is unpredictable. Therefore, they couldn’t grant Kashtanova authorship and copyright protection.

They eventually granted partial protection where the text and image arrangement were copyright protected, but not the images.

One of the pages from the graphic novel Zarya of the Dawn
A page from the graphic novel, source

  • A Disney illustrator, Hollie Mengert, found that a mechanical student from Canada had cloned her art style in an AI experiment, and now anyone could copy her style using a simple prompt on an AI art generator. The Canadian student, who trained the AI on Hollie Mengert’s artwork, took about 2.5 hours on a GPU at which cost him less than $2. The same art style took years for Mengert to master. 

    “I noticed a lot of images that were fed to the AI were things that I did for clients like Disney and Penguin Random House. They paid me to make those images for them and they now own those images. I never post those images without their permission. So even if he had asked me and said, can I use these, I couldn’t have told him yes.”
A comparison of Hollie Mengert’s original artwork and the Stable Diffusion generated art using her style prompt.
(Left) Original artwork by Hollie Mengert; (Right) Stable Diffusion DreamBooth-generated art using Hollie’s style prompt, source

If the source material used to train the AI is in the public domain, then the resulting AI-generated content may also be considered public domain. This could mean that anyone can use or modify the content without permission from a copyright holder. Would the Office then consider it to be protected under the original copyright?

Copyright Law in the UK and EU

Since the 1980s, the UK has protected the copyright for computer-generated artwork as long as it has been created with AI assistance and human creativity. For AI-generated work, it clearly designates “the person by whom the arrangements necessary for the creation of the work are undertaken” as the author and gives full copyright to them.

But things have changed today, especially with AI tech. There is a chance that the UK government had anticipated the copyright issue around data used to train AI generators. Thus, they had proposed plans permitting organizations to allow data mining for AI training without being implicated in copyright infringement. The law is not yet in place though; we’ll have to wait and watch how the UK government plans to roll it out.

In April 2023, European lawmakers added a clause to the AI Act, wherein AI developers would have to reveal the sources and datasets that were used to train their AI models.

However, this has not passed yet and lawmakers are still tightening regulations around AI tech and generative AI. 

Using AI-generated Art Commercially

If you are looking to use AI-generated art commercially, then you may want to consider these things: 

  • Attribution: Attribution is an important aspect of copyright law, and it can be difficult to assign authorship of AI-generated art. You need to figure out the right way to attribute the author of the artwork and comply with requirements under specific laws.
  • Originality: Copyright regulations protect original works of authorship. However, with the debate around whether AI-generated art is truly original or simply a derivative work, you should consider the level of originality in AI-generated art and whether it is subject to copyright protection.
  • Fair use: The use of copyrighted material in the training dataset of AI-generated art may raise questions about fair use. Determine whether it is covered by fair use exceptions or if permission is required to create derivative works.
  • International copyright laws: Copyright laws vary by country, and you should ensure that the use of AI-generated art complies with international copyright laws and is legal in the countries where it will be used commercially.

Coca Cola’s “Create Real Magic” contest
Coca-Cola’s “Create Real Magic” contest, source

Future of AI-Generated Art Copyright

The future of AI copyright is complex and uncertain, as the technology and legal framework surrounding AI continues to evolve.

Coca-Cola has partnered with Bain & Company and OpenAI
in a bid to use generative AI for its marketing content and customer experience. They’re inviting digital artists to compete in the “Create Real Magic” contest, using AI platforms to generate original AI art from Coca-Cola's existing creative assets.

This is an interesting use-case as Coca-Cola owns the copyright to all their creative assets.

It could set an example for companies to responsibly use AI-generated art within their own ecosystem.

As AI technology continues to advance and become more widespread, it is likely that copyright laws and regulations will adapt to address the new challenges and opportunities presented. The future of AI copyright is definitely complex. However, the ongoing discussions and debate among stakeholders in the legal, technological, and creative fields is a good starting point.

Write to us and let us know whether you think there should be copyright provisions for AI-generated content or if it should be free use. 

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