In 2022, Jason Allen won the Colorado State Fair’s art competition with an AI-generated work of art using Midjourney, a generative AI system trained on art collected from the internet. However, the use of AI to win the art competition triggered a heated backlash online, with many questions raised about ownership and authorship. As generative AI art tools have been thrust into the limelight, questions about the compensation of artists whose art was scraped to train the models, who owns the images that AI systems produce and if the process of fine-tuning prompts for generative AI is a form of authentic creative expression have emerged.
Generative AI and U.S. Copyright Laws
Recently, a team of 14 experts across disciplines published a paper on generative AI in Science magazine, exploring how advances in AI will affect creative work, aesthetics, and the media. The paper raises key questions about U.S. copyright laws and whether they can adequately deal with the unique challenges of generative AI.
Copyright laws were created to promote the arts and creative thinking, but the rise of generative AI has complicated existing notions of authorship. Generative AI might seem unprecedented, but history can act as a guide. Take the emergence of photography in the 1800s, where the U.S. Supreme Court found that cameras served as tools that an artist could use to give an idea visible form, and the “masterminds” behind the cameras should own the photographs they create.
Unlike inanimate cameras, AI possesses capabilities that make it prone to anthropomorphization, which has led some people to wonder whether AI systems can be “owners.” However, the U.S. Copyright Office has stated unequivocally that only humans can hold copyrights.
Ownership of Images Produced by AI
The question of who can claim ownership of images produced by AI is complicated. While artists draw obliquely from past works that have educated and inspired them to create, generative AI relies on training data to produce outputs. This training data consists of prior artworks, many of which are protected by copyright law and have been collected without the artists’ knowledge or consent. Using art in this way might violate copyright law even before the AI generates a new work.
To mitigate this concern, some scholars propose new regulations to protect and compensate artists whose work is used for training. These proposals include a right for artists to opt-out of their data’s being used for generative AI or a way to automatically compensate artists when their work is used to train an AI.
The legal analysis is easier when an output is different from works in the training data. In this case, whoever prompted the AI to produce the output appears to be the default owner. However, copyright law requires meaningful creative input, a standard satisfied by clicking the shutter button on a camera. It remains unclear how courts will decide what this means for the use of generative AI.
Matters are more complicated when outputs resemble works in the training data. If the resemblance is based only on general style or content, it is unlikely to violate copyright because style is not copyrightable. If an output contains major elements from a work in the training data, it might infringe on that work’s copyright.
Generative AI is yet another creative tool that allows a new group of people access to image-making, just like cameras, paintbrushes, or Adobe Photoshop. However, a key difference is that this new set of tools relies explicitly on training data, and therefore creative contributions cannot easily be traced back to a single artist. The ways in which existing laws are interpreted or reformed and whether generative AI is appropriately treated as the tool it is will have real consequences for the future of creative expression.
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