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Generative AI can create images. Assume that these images are totally original.

Would that mean that we would have the full rights to the images created by the AI? Could we use these images in a product that we sell?

UPDATE

"AI Art" is possible thanks to Latent Diffusion Models, the most popular being DALL-E, Craiyon, Latitude Voyage, Midjourney and Stable Diffusion.

As of this writing, only Stable Diffusion is open source. Here is their declaration admitting that all work created with the tool grants all rights to the user of the tool (assuming you don't do illegal things).

enter image description here

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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Mar 27, 2023 at 10:48
  • How it be otherwise? Do you not own the AI? Failing ownership, do you not a contract? Apr 5, 2023 at 18:45
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    @RobbieGoodwin AI uses training data, and that training data is based on images that have copyright. So the question is, can the AI-generated image be considered an original work of art to which I now have ownership? This is new territory, and so far nobody really knows the answers. It will take a court case to produce the precedent that everyone else relies on going forward.
    – Cybernetic
    Apr 5, 2023 at 19:21
  • @Cybernetic To suggest that AI comes into this is to misunderstand the idea of Copyright. If your outcome is based on copyright images, you fall foul of copyright and that's all there is to it. How could it matter what was achieved through people, dumb algorythms or AI? This territory isn't new; it's been well trodden since 'copyright' emerged, how long ago? FYI every published image has two forms of copyright; one for the content, one for the presentation. Whether they conflict is quite separate. Apr 5, 2023 at 20:13
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    @RobbieGoodwin ALL inventions, of any kind, sit on top of things that already exist. There is no such thing as a purely original invention. The question is, does the combination of things used constitute an original work of "art." This is dealt with regularly in patent law. In the case of AI, it is not merely blending existing images, it is CREATING a never-before-seen image using elements of existing images. Imagine an artist looking at a photo for inspiration of their painting. Does the artist still own the painting? Yes. Understand now?
    – Cybernetic
    Apr 5, 2023 at 23:42

2 Answers 2

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Per a decision of the US Copyright Office last month, AI generated images are not subject to copyright. That means you can use the generated images for any purpose you want1, but so can anyone else. However, the specific usage of a given image might be protected - so if you put a caption on the image and arrange it in the form of a comic (as the artist in that example did), that specific text and arrangement can be protected, but the underlying image can't be.

Laws may differ elsewhere in the world, but that's the current stance in the US.


1 Subject to any appropriate laws, including any copyright laws which the new image itself may violate. Just because the image isn't protected itself doesn't mean that it can't infringe on someone else's copyrights. See the other answer for more details.

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    Hwoever, the art can still infringe on copyrighted works - such as "draw iron man" would violate the copyrights of Marvel
    – Trish
    Mar 26, 2023 at 20:44
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    @Trish No, it wouldn't. Only specific expressions of a character are protected by copyright, and the AI would produce entirely new ones. It might infringe the one of trademarks of Marvel, though, if they've trademarked Iron Man's likeness.
    – nick012000
    Mar 27, 2023 at 8:43
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    @Trish in addition to content, independent artists have voiced issues that their distinct style was reproduced by an AI tool. One instance of this was an artist who was banned from a subreddit because their original art was assumed to be AI generated. That's in addition to other controversies over how ethical it even is for the AI tool to have been trained on copyrighted image data or otherwise data that should not be publically available.
    – VLAZ
    Mar 27, 2023 at 9:05
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    There is another controversy where the training image data includes private medical information. Overall, I find that a clear-cut answer "sure it's fine" is very problematic considering the multitude of issues including copyright issues like reproducing the Getty Images watermark.
    – VLAZ
    Mar 27, 2023 at 9:10
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    @Trish I swear I remember characters being copyrightable but don't remember the details. The words "iron man" are not copyright (they would be a trademark) but the design of a guy in a robot suit with a big electric thing on his chest and ...etc... is already a copyrighted creative work, even if you draw him yourself in a different pose. IIRC. Mar 27, 2023 at 9:46
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The new work would not be protected by copyright law in the US. A different concern would be whether a created image might leave you liable in a copyright-infringement lawsuit. Although the output might be unique in that it algorithmically mashes two protected images into a new image, you might get sued for copying those underlying works. The input might just be text, not an image file, but that text is used by the program to search for relevant images, then copies the files (without permission). A person who unleashes a content-copying program on the internet is not immunized from an infringement lawsuit because "it wasn't me, it was my program". This is an issue that is being addressed in the courts right now (see this complaint).

On the other hand, if an image is created in a different manner, analogous to how you might verbally describe a desired image to a human artist, then there is literally no copying, and probably no legal infringement. I say "probably no infringement" because the output could end up resembling a protected work, so even if there was no actual copying, there could be legal infringement when the result is "strikingly similar" to a protected work.

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    "Although the output might be unique in that it algorithmically mashes two protected images into a new image" That's not how AI image generation works. It doesn't mash images together; it derives a set of statistical predictions based on a corpus of images it's trained on that are then used to create new images.
    – nick012000
    Mar 26, 2023 at 20:41
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    in a sense this is no different than patent infringement law. You can change a few things and call it your own, but the trick legally is to figure out what constitutes copying, or if it is indeed original.
    – Cybernetic
    Mar 26, 2023 at 20:52
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    A big difference between copyright and patent law is that violating copyright requires copying. That implies access to the original. The AI program was presumably fed the original as input at some point. Patent infringement occurs whether or not the infringer has any knowledge of the original. Mar 27, 2023 at 1:15
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    @nick012000 in what sense is this not just a really advanced way of mashing images together? and if it is... here's a fun fact: every output is derived from every input. Mar 27, 2023 at 9:48
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    @Clumsycat Its extrapolation quality is stunningly poor compared to its interpolation quality, though. If you've got something visually-pleasing that isn't abstract and psychedelic, it's probably interpolated.
    – wizzwizz4
    Mar 27, 2023 at 15:09

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