Do you like my ‘photograph’? I created it in a matter of minutes using DALL-E2. But do I own the copyright? If not, who owns the copyright in an image created using an AI art generator?
It’s a good question. And there are two parts to it really: what are you allowed to do with an image generated using an AI art generator such as DALLE2 or Midjourney? And what (if anything) can you stop others from doing in relation to that image?
In the case of an original artwork, such as a painting or photograph, that you have created yourself in a traditional way, these two questions are relatively easy to answer: you own the copyright (unless the artwork was created in the course of your employment and as part of your employment duties), and you can stop others from copying it (simplistic, I know, but it will suffice for this narrative).
However, the situation is much more complex for AI-generated images and artwork, and is most easily discussed under four headings:
Is there UK copyright in AI-generated artwork?
The general consensus here is yes, there is (or at least there could be). UK law allows for copyright in ‘computer-generated works’, with a reduced term of 50 years from when it was created (as opposed to the 70 years from the death of the author in the case of artwork created by a human). Simple so far…
BUT
Who owns the copyright in AI-generated artwork?
This question is the current talk of the town; and, whilst the UK Government is still pondering the issue, the answer remains unclear. The Copyright Designs &Patents Act 1988 states that, in the case of a computer-generated artwork, the ‘author’ (i.e. usually the first owner of copyright) will be “the person by whom the arrangements necessary for the creation of the work are undertaken”.
But who is that for an AI-generated artwork?
• The user of the AI art generator, who has put the inputs into the software?
• The person that created the software?
• The person that taught the AI-powered software?
• The person(s) that own the copyright in the image elements used to create the new artwork?
There is no simple answer to this; it is still under debate and unless or until the issue is resolved (which, hopefully, will be in the next year or two), any legal disputes around this issue will have to be very carefully assessed on a case by case basis.
When the UK Government consulted on this issue, many respondents favoured the AI-generator software creator as the owner of any copyright in artwork generated using the software.
However, it takes a vast amount of training data to train the AI model underpinning the software, and the training data is not usually available in the public domain (in fact, it is often classed as a trade secret, but that’s another blog…), so who is to say that true copyright ownership isn’t shared between multiple people, including the authors of the original artworks used to train the AI model and, ultimately, to create the new artwork?
What are you allowed to do with artwork you have created using an AI art generator?
This question is a little easier to answer, at least for the time being. What you can and can’t do with artworks created using an AI art generator is usually very clearly set out in the software tool’s terms of use. In the case of DALL-E2, for example, their Commercial Use Terms state that:
• You own all of your inputs into DALL-E (prompts and uploads);
• You are assigned full rights to use, re-sell and otherwise commercialise generated images
• You may use generated images for any business purpose, provided it does not violate OpenAI’s content policy; and
• The above applies to all images, regardless of whether free or paid credits were used.
That’s fairly straightforward, and many of the other AI art generators follow the same model. Which is fine, provided, of course, that DALL-E2 actually has the right to distribute these rights (see ownership issue above), and they stop short of actually handing over the copyright – the terms are more like a licence that permits (almost) unlimited usage of your artwork, subject to some conditions/limitations (that violate OpenAI’s content policy).
And that leads us to the final question…
What can you stop others from doing with your AI-generated artwork?
Well, given that (at the moment) it isn’t clear whether or not you would own any IP rights in an artwork generated using an AI art generator, it is equally unclear whether or not you could legally stop anyone from copying your image. However, even if you could, would there be any real value there?
Because you certainly couldn’t stop someone from putting much the same prompts into the AI generator to generate much the same artwork which, according to the terms of use of the software, they would then be free to use (I challenge you to try this with my image: it won’t take much – just say what you see!).
My guess is that this debate will go on for some time, and will give many distinguished legal brains many hours of entertainment on the process. But, for the end users of the AI art generators, I doubt that the result of the debate will have any real impact.
About the author
Whether you are an entrepreneur with a great idea for a business who is new to the world of intellectual property, an established company with an existing IP portfolio, or you are a service provider that helps innovative companies to maximise their potential, we can help. Our CEO, Vicki Strachan, has over 20 years’ experience of working in private practice with clients of all types, including start-up and spin-out companies, universities, SMEs and multinational corporations, in many different science, technology and manufacturing sectors.
As a small, but growing, company, Strachan IP is able to offer a tailored service to help you and your company to identify, capture and ultimately manage the intellectual property within your business. We are committed to gaining a deep understanding of your business, what sets it apart from your competitors, and how the intellectual property within the business maps onto your uniqueness in the market.
If you would like to speak to us about your intellectual property, please book a free initial consultation by emailing vicki.strachan@strachanip.co.uk or visit our website at https://strachanip.co.uk/contact/
