Is AI-Generated Art Eligible for Copyright Protection?

In this newsletter, read about:

• 🕵️‍♀️ AI Art & Copyright

• 🗞 News and Top Reads

• 📌 AI Art Tutorial: Midjourney Office Hours Recap

• 🎨 Featured Artist: Ganbrood

• 🖼 AI-Assisted Artwork of the Week

• 🤓 A Comprehensive Midjourney Guide

🕵️‍♀️ AI Art & Copyright

Every day, millions of AI images are generated. While AI haters may scoff, some of these images are undeniably works of art. As a result, it's no surprise that creators of these works are wondering whether they can copyright images generated with the help of AI. Let's take a closer look at the copyright regulations in the US and other countries.

AI-Generated Art & Copyright Regulations in the US

In March 2023, the US Copyright Office (USCO) published a separate guide explaining their policy with respect to “works containing material generated by artificial intelligence.” Here are a few takeaways from this document:

• In the United States, only works created by humans are eligible for copyright protection. This means that works created by animals, ocean waves, or machines are not copyrightable.

• AI-generated images created solely from a text prompt are considered computer-generated by the U.S. Copyright Office (USCO).

  • The USCO compares prompt writing to giving instructions to a commissioned artist: you identify what you want to be depicted, but the machine determines how the instructions are implemented.

  • In other words, the USCO does not believe that the prompter has sufficient creative control over the output to claim human authorship.

• However, a work containing AI-generated material may still be eligible for copyright protection if it contains sufficient human authorship.

  • For example, if an author arranges the AI-generated material in a sufficiently creative way, the resulting work as a whole may be considered an original work of human authorship.

  • Another case that may be eligible for copyright protection is when an author modifies material originally generated with AI to the extent that the creator "actually formed" the traditional elements of authorship.

  • In these examples, copyright will only protect the human-authored aspects of the work, not affecting the copyright status of the AI-generated material.

• The USCO will decide on a case-by-case basis whether a specific work containing AI-generated material is eligible for copyright protection.

  • The decision will depend on how the specific AI tool operates and how it was used to create the final work.

  • The USCO will also consider whether the AI contributions were the result of mechanical reproduction or the author's own original mental conception.

It is worth noting that the Copyright Office is still developing its policies on the use of AI in the arts. The Office plans to hold public listening sessions throughout 2023 to gather more information about the technologies and their impact.

For now, it seems that you cannot copyright an image generated by Midjourney using only a text prompt, no matter how elaborate the prompt or how much time you spent refining it. However, there are many open questions, such as whether images generated through image prompting using your own photos can be copyrighted. Or, how much editing in Photoshop is required to prove that you had sufficient creative control over the final output?

Let's see how the policies evolve. After all, at one time, many people believed that photographs could not be copyrighted because they were simply "reproductions on paper of the exact features of some natural object or of some person."

Other Countries Addressing AI-Generated Art in Their Regulations

Throughout the world, the policies with respect to copyright protection of AI-generated works are quite varied. Let’s have a brief overview.

In the European Union (EU), copyright law is mostly governed by the national laws of each member state. This is especially true when it comes to rules on attribution of authorship and allocation of ownership. In general, for a work to be eligible for copyright, it must be the intellectual creation of a human.

AI-generated creations that are produced with human intervention may be considered human-authored in some circumstances and, therefore, be protected under EU copyright law. On the other hand, artworks generated entirely by AI are unlikely to qualify as authored by humans and, therefore, unlikely to be protected under current EU copyright law.

In general, EU policies with respect to AI-generated art are similar to those in the United States.

In contrast to the US and the EU, the United Kingdom (UK) has a more forward-thinking stance on AI-generated art. UK law allows copyright to subsist in a work that is generated entirely by AI. However, the copyright protection period for AI-generated works is shorter than for human-created works: 50 years versus 70 years.

Additionally, the UK regulations specify that "in the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". This means that the person who creates the AI program or sets up the AI system is considered the author of the AI-generated work, even if they did not directly create the work themselves.

Therefore, in the UK, an AI-generated work that expresses original human creativity will be protected by copyright, just like a work created using any other tool.

In addition to the United Kingdom, AI artwork is also subject to copyright in Ireland, India, and New Zealand.

Is AI-Generated Art in Public Domain?

As we can see, AI-generated images are not protected by copyright laws in most countries. Basically, they are left in the public domain. Does this mean that anyone can take an AI-generated image and use it however they want? Not quite. There may be other legal restrictions in place, such as trademarks, patents, and platform contracts with users.

For example, Midjourney's Terms of Service state that paid members own all assets they create using Midjourney, except for upscales of images created by others. This means that the contract between Midjourney and its users prohibits the direct commercial use of images generated by others. However, others are still allowed to use and remix your images and prompts as long as they are published in a public setting.

If you want to use your AI-generated images commercially or otherwise, you will most likely be able to do so if the AI-generating platform you use grants you commercial rights over your generations and your images do not infringe any trademarks. For example, AI generators like Midjourney, DALL-E, and Leonardo give users full ownership over the images they generate, including the right to use these images commercially (e.g., print, sell, license, etc.). In contrast, Adobe Firefly does not allow commercial use of the generated images at the moment, as the product is still in beta.

While AI art is not copyrightable in most parts of the world, you can still use and monetize your AI generations. In fact, if you can prove that your artwork had significant human input and you had considerable creative control over the final work, you may even be able to copyright your artwork.

Happy Prompting!

🗞 News and Top Reads

• Inworld and ElevenLabs partner to bring dynamic voices to AI NPCs.

  • Inworld AI, the leading character engine for AI NPCs, and ElevenLabs, the industry leader in voice AI, have announced a new partnership to bring dynamic voices to AI NPCs.

  • Realistic voices will add an emotional dimension to NPCs, allowing them to adapt their tone, intonation, and style of speech based on the context of the user interaction.

• Shutterstock introduced AI to create photorealistic 3D backgrounds.

  • Creators will be able to quickly create and customize 3D scene backgrounds using simple text or image prompts.

  • The new tool is powered by NVIDIA Picasso, a cloud-based foundry for developing generative AI models for visual design.

• Google and Universal Music Group are negotiating an AI-generating music tool.

  • As reported by Financial Times, the companies want to develop a tool for users to create AI-generated music using an artist’s voice, lyrics, or sounds.

  • A deal would compensate copyright holders for the right to create music, while artists would have the choice to opt in.

  • Warner Music Group is reportedly also in talks with Google to develop a similar product.

📌 AI Art Tutorial: Midjourney Office Hours Recap

Here’s a 5-min recap of Midjourney Office Hours from last week. Learn about website plans, approximate release dates for versions 5.3 and 6, inpainting feature, and new aesthetics.

🎨 Featured Artist: Ganbrood

Bas Uterwijk aka Ganbrood is an Amsterdam-based artist with a background in special effects, 3D animation, videogames, and photography. Since 2019 he combined his different skills and experiences when he started working with generative adversarial networks (GANs), AI-based tool that interprets and synthesizes photographs. With the help of these neural networks, he constructed photos that were never recorded by an actual camera, portraits of people that lived before the camera was invented, or people that never existed. His latest series of artworks are more abstract: "pseudo-figurative" pieces in which he interrogates GANs on creativity and their ability to disrupt human visual recognition.

🖼 AI-Assisted Artwork of the Week

🤓 A Comprehensive Midjourney Guide

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