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I was reading the TOS of OpenAI (https://openai.com/api/policies/terms/) to find out whether it's legally possible to distribute images generated in the tool via Twitter or non-public platforms like WhatsApp.

In the Usage Requirements, it's stated that one can't distribute any content generated via OpenAI. Does that mean that sharing content (like generated images from DALL-E) can not be shared at all?

2. Using the APIs

(c) Copyright. OpenAI will not assert copyright over Content generated by the API for you or your end users.

3. Usage Requirements

(b) You will not:

  • (i) distribute, sell, lend, transfer, or grant any rights in or to all or any portion of the Services or Content to any third party (except for making Content available to end users and allowing end users to use your integration of the APIs through the Application, or as otherwise authorized via additional terms for that service);
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Copyright

They don't assert copyright over the images, because under US law (and the laws of many other countries), they probably can't. Images and other content which do not involve significant human originality are, generally speaking, not subject to copyright protection in most jurisdictions, so this term is rather unsurprising. However, it does confirm that they are not relying on copyright law to apply these restrictions, which means that the huge statutory damages for copyright infringement are not relevant here.

Usage requirements

This is essentially a contract. They agree to give you an image of [whatever prompt you typed], you agree to abide by these restrictions. If you breach the contract, they can sue you for damages or specific performance (see 12(f)).

Sharing an image on Twitter probably falls within "making Content available to end users," but I would like it better if they clarified that you are allowed to make use of third-party services (such as Twitter) in order to accomplish that. On the other hand, to my understanding, these images have circulated widely on social media and OpenAI does not appear to care. If you are concerned about this, it might be a good idea to reach out to them and ask.

Regardless, I'm rather doubtful that they would be able to get large monetary damages or an injunction for something like this, as they would need to allege some sort of harm resulting from your breach of the contract. I don't see what that harm would plausibly be, given that they expressly permit sharing these images with "end users."

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  • I agree OpenAI cannot claim DALL-E as an author of the the work and have copyright on these grounds. However, I do not think your first paragraph establishes that OpenAI could not claim copyright on other grounds; they could put a clause requiring an exclusive license for anything that DALL-E produces. If you sign a deal with Penguin Books to publish your novel, then go to HarperCollins to publish another edition, you’re going to end up in legal trouble, even if nobody at Penguin Books acquired copyright via authorship.
    – KFK
    Apr 28, 2023 at 12:24
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    @KFK: Contracts cannot give rise to copyright protection, nor anything resembling copyright protection, because you would lack privity of contract with anyone other than the other signatories. If the images are not copyrighted because they are not the result of human creativity, then nobody owns them, and nobody can own them, as a matter of law. Signing a contract which purports to assign copyright would change exactly nothing in that regard (there is no copyright to assign).
    – Kevin
    Apr 28, 2023 at 16:09
  • DALL-E itself does not have copyright, sure, but what about the human querying DALL-E? They are giving a prompt ("creative input"), not just clicking a "generate an image" button. You could argue that the prompt is simple enough that it does not contain creative input but IMO that’s at best a case-by-case thing ("draw a giraffe" is simple, but what about "draw a giraffe with a pirate eye-patch in steampunk style"?).
    – KFK
    May 2, 2023 at 9:16
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    @KFK: The copyright office thinks that merely entering a prompt is insufficient.
    – Kevin
    May 2, 2023 at 19:18

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