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I have read in other posts on this website that AI generated content cannot be copyrighted, because it was not created by a human, it is public domain, and not owned by a human.

If such content is not owned by any human, can companies really enforce rules and restrictions about what you can do with that content?

For example, suppose I make an image on Bing's AI for making images. They have Terms of Service and restrictions on what I can do with that image, but they don't own the image, so how can they control what I do with an image they don't own the rights to? Are those terms invalid? I suppose they can restrict the tool itself, but can they restrict what we do with the content it produces in any way? Assuming the usage does not violate any other laws, can they really add additional restrictions to the use of an image they don't own?

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  • Neither Bing nor OpenAI puts any restrictions on what you can do with the content generated. AFAIK only Midjourney does.
    – JonathanReez
    Commented Dec 4 at 22:51
  • @JonathanReez many AI companies say "if you wanna use commercial, you need to pay us" or "you need to tell this was made with us if you use it free"
    – Trish
    Commented Dec 5 at 14:28
  • @Trish not "many", only Midjourney does this out of the major image generation companies.
    – JonathanReez
    Commented Dec 5 at 19:05
  • @JonathanReez no? Hotpot AI requires buying generation power to use creations commercially. As is the pricing model of Imagine.art. or Gencraft. All of them ban commercial use if you do not pay for the service.
    – Trish
    Commented Dec 5 at 19:48
  • That "AI generated content cannot be copyrighted, [...] it is public domain" is the current position of the U.S. copyright office, but attributing that to AI-generated works not being created by a human attempts to assign agency to the AI that, in reality, it simply doesn't have. Such works are created by a human, using the (trained) AI as a tool. A better justification would be that such a work simply is not a creative work for the purposes of the Copyright Act in the first place, such that copyright would even be a consideration.
    – John Bollinger
    Commented Dec 5 at 20:09

2 Answers 2

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These terms are assumed valid until a court or law finds they patently aren't.

It's a basic premise of : A contract is formed if there's a meeting of minds, an exchange of consideration (value) to both sides, and the contract is not illegal.

The value exchange in question here is basically

  • "You get access to the AI and may use the image under these terms" and
  • "AI Company gets that you are not free to use the image as you want but agree to these terms (or pay for better terms)".

As such, the basic assumption should be, that the clause is valid, as consideration was exchanged, a meeting of minds can be assumed and at the moment (most) AI content is not illegal.

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Ownership of the content isn't relevant here - you agreed to use the service under particular conditions. If you enter into an contract with Bing that you will use their service, and not do certain things with the result, and then do those things anyway, you have breached the contract.

Consider the example of a video game publisher who gives early copies to reviewers but puts an embargo on publishing information until the release date. If the reviewers post footage of them playing the game before the embargo passes, they'll have broken the contract, despite having complete ownership of the video they posted. A company can indeed enforce rules on things it doesn't own, if you contractually agreed to those rules.

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  • The video recording of a game is a clear derivative work.
    – Therac
    Commented Dec 4 at 1:19
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    @Therac, at least in the United States, the video recording is almost certainly covered under the "commentary" aspect of fair use.
    – Mark
    Commented Dec 4 at 1:37
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    @Therac Even if in some cases the publisher can deny creators the right to reproduce the videos, they can always choose to explicitly grant them that right. My point is that even in the worst possible case where the publisher has no copyright claim over the reviewer's video whatsoever, there can still be contractual obligations unrelated to copyright. I'm not sure why you brought up derivative works in the first place, as I said in the first sentence, ownership/copyright isn't relevant.
    – Nuclear Hoagie
    Commented Dec 4 at 16:24
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    Perhaps something like a car review would be an cleaner example by avoiding the question of derivative work?
    – Jack Aidley
    Commented Dec 4 at 19:32
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    Publishing footage of the game prior to the NDA being lifted would be breach of contract, but possibly no intellectual property problem.
    – jwenting
    Commented Dec 5 at 10:27

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