Copyright and AI: Protecting Art in the Digital Age
The use of tools like Glaze to make your work unrecognizable to AI models, as well as supporting companies that prioritize responsible usage and compensation for artists. Protecting your intellectual property from the start gives you a strong advantage against theft of your work and opens opportunities to enforce your rights as a creator.
AI-generated art has become a captivating and controversial subject lately, sparking discussions about the intersections of creativity and legal rights. As a leading law firm that specializes in Intellectual Property, including copyright matters, we are dedicated to empowering our readers and clients with the necessary knowledge to navigate this AI terrain. Whether you are an artist, or business owner, or you are just interested in the AI and Intellectual Property world, buckle up! Let’s unravel the complexities of this captivating arena and uncover the legal framework that safeguards the rights and creativity of artists in the digital age.
Can AI Art be Copyrighted?
Whether AI- generated art can be copyrighted has been the subject of discussion amongst legal experts for quite some time now. Recently, the U.S Copyright Office addressed this issue by stating that copyright protection is currently limited to original works created only by humans.
With the rapid growth of the internet, more AI generating art platforms are emerging than ever – such as OpenAI and Stability AI, as examples. However, since AI-generated art is created by non-human machines, these fall outside the traditional scope of copyright protection.
Despite this, ongoing discussions are taking place regarding potential reforms to copyright laws to include AI-created artworks. Which, the U.S. Copyright Office acknowledges that copyright protection is available for “original works of authorship fixed in any tangible medium of expression.” This implies that AI-generated art, created through algorithms, could potentially be eligible for copyright protection.
However, for this to be approved, certain criteria must be met for AI art to qualify for copyright. One of the most important requirements is that the work must demonstrate sufficient human authorship and creativity behind the piece of artwork created. If the AI simply replicated existing works without significant human input, it may not meet the threshold for copyright protection.
As a part of the registration process, applicants must now disclose the use of AI in their works, as stated by the Copyright Office’s policy. Those who have already submitted applications without this declaration will need to amend their applications accordingly.
Can AI Art be Plagiarized? What does the U.S Copyright Office Said about AI-Generated Art?
Some creators and companies have raised concerns about their content being stolen by generative AI companies, leading to pending lawsuits aimed at challenging the fair use protections enjoyed by these AI companies.
One notable lawsuit involves Getty Images suing Stability AI, the company behind Stable Diffusion, for copying and processing millions of copyrighted images and associated metadata without permission or compensation. Similarly, TikTok settled a lawsuit with voice actress Bev Standing, who alleged that her voice was used without permission for the platform’s text-to-speech feature.
In another case, artists Sarah Anderson, Kelly McKernan, and Karla Ortiz filed a class-action copyright infringement lawsuit against Stability AI and Midjourney, both of which use Stable Diffusion to generate images. The artists claim that their work was improperly used to train Stable Diffusion, and that the AI-generated images in their style directly compete with their own work, raising concerns about fair use.
However, the U.S. Copyright Office’s stance on excluding machines from being considered authors could complicate these lawsuits, if there is no author, there may not be infringement. This perspective challenges the notion of holding technology makers liable and raises questions about who can be held responsible for creating infringing works.
To protect themselves against potential copyright infringement claims, AI art generator owners like OpenAI have implemented measures. For example, they restrict the use of recognizable faces, brands, and images of politicians or celebrities. Additionally, safeguards are in place to prevent the generation of harmful or violent content. While these measures provide some level of security, there is currently no foolproof protection against unauthorized use of copyrighted images, intentional or unintentional.
Artists understandably worry about the impact of AI image generators on their market. However, some copyright theories presented in these lawsuits, such as expanding copyright restrictions, could have unintended consequences for human creators, research, search engines, and technological advancement.
Copyright law seeks to strike a balance between providing artists with incentives to create and granting the public the right to build upon and use their work. The question at hand is whether the copyright owners of the images used to train AI generators have the right to prohibit such uses. Copyright law distinguishes between factual observations and the creative expression of a work. While factual observations and copying facts are generally allowed, copying the creative expression in a way that substitutes for the original or creating derivative works that excessively copy creative expression can be copyright infringement. Fair use is also a crucial factor, where the purpose of use, nature of the original work, amount used, and potential harm to the market for the original work are considered.
Who Owns the Rights to AI-Generated Art?
When it comes to ownership of AI-generated art, the question of who holds the right to the artwork arises. Is it owned by the artist who created the art piece, or is it the property of the AI software used to make it?
This situation can be compared to a painter standing in front of a white canvas. The artist bought all the equipment to create its masterpiece; such as paint, brushes, stencils, etc. Making it clear that they own the final creation according to intellectual property law.
However, the intersection of intellectual property and technology introduces complexities. Suppose an artist seeks work with an AI-art generator to enhance the work using this software. In this case, does the owner gain the rights of the artwork made by this AI-art generator?
Ultimately the answer lies in the terms of use of the specific tools being used. In the case of Open AI’s Dalle-E2, the terms and conditions have been carefully crafted to grant the right to the human creator who provided the original and creative input. They also acknowledge that machine learning and artificial intelligence can produce similar outcomes for different creators. Consequently, if a second creator obtains a similar output, they would own that specific iteration.
Nonetheless, the application of copyright law to AI-generated artwork is still an emerging field, that remains uncertain how courts and legislators will address these matters in the future.
How Can I Protect My Art from Being Copied by AI?
To protect your art from being copied by AI as an artist or content creator, such as a photographer, painter, designer, or any person whose life is to generate any form of artistic work; there are a few approaches you can take. The first thing you can use is a new tool called Glaze, which is designed specifically to prevent AI models from learning and mimicking your artistic style.
This tool is extraordinary because it works by uploading your creation to Glaze and choosing a different art style, this occurs when the software makes subtle mathematical changes on a pixel level that will make the image appear different on the computer system and also to different AI models who might try to steal your creation, but it will still look the same to the human eye.
In addition to individual efforts, some companies are taking a proactive stance. As mentioned previously, Getty Images has banned AI-generated content from its platform due to concerns about copyright issues and the unsettled nature of the legal landscape surrounding AI-generated imagery.
The legal aspects of copyright in relation to AI-generated works are currently uncertain. AI image generators often scrape copyrighted images from the internet, including news sites and stock photo platforms. Whether this usage violates copyright law is an open question for the courts. Typically, the fair use doctrine allows the use of copyrighted material for transformative purposes such as commentary, criticism, or parody. However, the automated nature of AI tools’ production makes it challenging to determine whether the resulting images can be considered transformative.
As we’ve seen in recent years with the birth of Web 3.0, even though Copyright is meant to protect the creative expression of artists, the constant evolution of digital resources and tools puts a dent on governmental efforts to protect the intellectual property of creators and entrepreneurs. While the development of new technologies represents an advancement towards the future, the reckless and irresponsible application of it can have and is having harmful effects on the livelihood of people today.
Copyright infringement cannot be prevented, but there are steps that can be taken to put a stop to it if it happens. Like in other areas of IP Protection, taking a proactive approach in the protection of your work in crucial, such as in the protection against AI software by involving the use of tools like Glaze to make your work unrecognizable to AI models, as well as supporting companies that prioritize responsible usage and compensation for artists. Protecting your intellectual property from the start gives you a strong advantage against theft of your work and opens opportunities to enforce your rights as a creator.
Protect Your Artistic Vision
If you are an artist seeking to safeguard your creative works in the face of AI advancements, Trestle Law is your trusted partner. Our San Diego-based law firm serves clients throughout California, nationwide, and globally. Schedule today a complimentary consultation by calling 619-343-3655. Our dedicated team of IP and trademark attorneys will help you navigate the intricate world of copyright protection. Let us be your ally in preserving your artistic vision for generations to come.
Sources:
Mattei, S. E.-D. (2023, March 21). US Copyright Office: Ai generated works are not eligible for copyright. ARTnews.com. https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/
Mahendra, S. (2023, March 24). Who Owns Art Created By AI? Can AI Art Be Copyrighted? Artificial Intelligence +. https://www.aiplusinfo.com/blog/who-owns-art-created-by-ai-can-ai-art-be-copyrighted/
Glover, E. (2023). AI-Generated Content and Copyright Law: What We Know. Built In. https://builtin.com/artificial-intelligence/ai-copyright
Vincent, J. (2023, January 16). AI art tools Stable Diffusion and Midjourney targeted with copyright lawsuit. The Verge. https://www.theverge.com/2023/1/16/23557098/generative-ai-art-copyright-legal-lawsuit-stable-diffusion-midjourney-deviantart
Walsh, K. (2023, April 13). How We Think About Copyright and AI Art. Electronic Frontier Foundation. https://www.eff.org/deeplinks/2023/04/how-we-think-about-copyright-and-ai-art-0
Jacobs, H. (2022, September 22). US Copyright Office: AI Generated Works Are Not Eligible for Copyright. ARTnews.com. https://www.artnews.com/art-news/news/getty-images-bans-ai-generated-images-due-to-copyright-1234640201/