To start, let me say that I am not an intellectual property (IP) attorney, so nothing I write here can be considered a legal opinion. Rather, I am an interested party, having been involved in IP cases and contracts for 20 years, and as a photographer for 50 years.
That said, who owns the rights to art or writing produced by AI software? The answer is it’s TBD. In truth, it depends on a number of factors starting with: is the AI software a tool, a person, or a hybrid of the two? Unless that’s answered, no one will know what to do with it.
As California attorney, Mitch Jackson, Esq., wrote in an article called “New Copyright Decision re Midjourney AI,” the U.S. Copyright Office recently announced a decision stating that producers of images created by Midjourney AI software cannot copyright their final image. Indeed, states the Copyright Office, producers of the image only contributed the work’s text (AI prompt), and as such, that textual prompt is the only thing they own.
It seems pretty definitive, but will it stand up? Perhaps not. You see, the issue isn’t that simple. For one thing, while the prompt is a key part of the process—you will NEVER produce the same images I do because my prompts are long and very specific—but they aren’t the only input. AI software, by its nature, is a learning system. These programs are developed by ingesting loads of input which it uses to teach itself, effectively, what users will want to see or read. As such, the completed work is a hybrid, and sometimes derivative work, from the originators of the images or text ingested, the textual prompt, and the software itself.
So, who does the actual image belong to? The Copyright Office didn’t offer a determination yet. Why? To do so, first they would need to decide some important things. Is the AI system a tool, a legal person, or a simple collaboration engine?
If it is a tool, then it’s no different than, say, 3D rendering software being used by artists, or by extension, Adobe Photoshop or Microsoft Word. My image, above, was rendered via my copyrightable text prompt, an original oil painting of mine, and the AI engine, Dream, which made alterations to my image based on its learning database. So, the inputs were partly (mostly?) mine, the idea is mine, and software helped. So, it’s mine, right?
Maybe. You can think of this like a collage. I start with my painting, and then software paints on different bits from other places, while keeping the image thematically mine. The final image can be thought of as though I’d really made a collage from other art. What is the Copyright Office’s and the Courts’ opinions of one’s ability to copyright collages? The answer is it depends. There are no definitive answers, and decisions mostly are based on cases’ individual merits. TBD.
Well, what if the AI software owners assert that their software produced the image, as the Copyright Office stated, and therefore they own it? Well, if that holds up in court, expect image holders like Getty Images to pay bucketloads to buy these AI engines so they own both the inputs and outputs. That aside, expect artist to then sue and tie these companies up in court for YEARS. Why? Because asserting that AI produced and owns the final product means the company thinks their software isn’t a tool, it is something more than that—an actual AI based, pseudo person. Think about it. At no point has Adobe asserted its rights to images drawn on its software, nor have similar producers of tools. Microsoft doesn’t claim a royalty from my books because I couldn’t possibly have written them longhand. That would be ludicrous.
So, if a Midjourney or a Dream claim they own the image, they are asserting their AI system effectively produced an original copyrightable Work. They, as the owners of the system, thus own the work.
How will that work? Let’s go all the way back to slavery. Did a slaveowner claim ownership rights to a slave’s work if, say, said slave produced a work of art while in bondage? One could assert this is covered under works for hire, I suppose, but don’t expect to get a binding decision until after the Supreme Court makes a ruling. And don’t hold your breath waiting for that. Can an AI slave’s work be a work for hire if said slave isn’t compensated? Slavery is still illegal.
We are treading on new quicksand.
What if the AI software isn’t a person or a tool? What if it’s a collaboration engine? Well, then the final image is a collaborative piece based on the ingested images and text, the users’ prompts, and whatever original manipulations the AI software does that changes both of the above into a final product. In that case, we’re back to the collage model. Ownership will likely depend on what work makes up most of the final product. Were I to guess, I’d assume the Copyright Office would decide the final product is not copyrightable and in the Public Domain.
Is that the likely answer, Public Domain? Were I to guess, the final answer will be that the Courts decide not to definitively decide, and Congress and the Executive Branches will have to pen a law to arbitrarily assign ownership. And who owns my image, above? Well, I assert that it’s me, since my text and image makes up, call it 75% of the final image, and no one can show proof that another artist’s work has been infringed upon.
Producers of AI-rendered art can expect no help in keeping others from stealing their images or stories. Use the software at your own risk and protect the images by KEEPING HIGH-QUALITY OUTPUTS OFF THE FREAKING INTERNET. You know, normal IP stuff.
It’s yours, sort of, but it’s absolutely not. Protect it anyway.
The 79 Percent 