Can AI Generated Images Be Copyrighted in the US?

Aug 09, 2022 at 09:00 am by Warlord720


With all the excitement around Artificial Intelligence image generators Midjourney and Dall E 2 come the inevitable questions of copyright. Who owns it?  Midjourney grants copyright in rather simple terms on its website: 

 

 

"Section 4: Copyright and Trademark 

Your Rights 

Subject to the above license, you own all Assets you create with the Services. This does not apply if you fall under the exceptions below. 

Please note: Midjourney is an open community which allows others to use and remix your images and prompts whenever they are posted in a public setting. By default, your images are publically viewable and remixable. As described above, you grant Midjourney a license to allow this. If you purchase a private plan, you may bypass some of these public sharing defaults." 

 Taken at face value this looks great and seems very straightforward. Based on this one owns the copyright according to MidJourney. In a lot of cases that may be true, and it may be just that straight forward but not in the United States. 

The fly in the ointment is the US Copyright Office and a pesky little ruling or two that denies copyright to Stephen Thaler for an AI-generated image. The Copyright Office found his image “lacks the human authorship necessary to support a copyright claim.”. 

Now, this is where we run into a plot twist of sorts. According to an online Copyright Review Board draft, Thaler did not assert that human authorship was involved but argued on the grounds of constitutionality. I will let you read the paragraph for yourself below:  

"Thaler does not assert that the Work was created with contribution from a human author,3 so the only issue before the Board is whether, as he argues, the Office’s human authorship requirement is unconstitutional and unsupported by case law. Currently, “the Office will refuse to register a claim if it determines that a human being did not create the work.” COMPENDIUM (THIRD) § 306. Under that standard, the Work is ineligible for registration. After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice,the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered."

So... how is it that any digital art can granted copyright? Relax, that is covered, at least according to the digital revenue recovery platform over at RedPoints 

"Art can be copyrighted as long as it meets the required criteria:  

 It is original work by you and shows at least a minimal amount of creativity  It is fixed in a tangible form – whether it’s paper, canvas, or a digital format. An idea of a work of art cannot be copyrighted  Also, if your artwork has been presented on an object, its utilitarian aspects cannot be copyrighted. For instance, if you have designed a digital art that is then being sold on tote bags or t-shirts, then you can copyright the art itself, but not the utilitarian aspects of the bags or t-shirts."

So digital art at this point is not in question in a general sense, just in terms of AI-generated images but this begs the question of what type of input is acceptable. I’m splitting hairs here as this is arguable at best, but input is an input... whether it be a mouse, pen, tablet, or prompt. Even at that, this might not be as important as the view of possible discrimination against disabled Americans. 

Now, what brought that up? A simple notion that a person can create art with word input be it verbal or other input devices, but a disabled person would be prevented from protecting their work that a well-crafted prompt might create when it’s physically impossible for them to use any other input device. I’m not saying the ADA (Americans with Disabilities Act) comes into play, just throwing it out there as another angle on an already complicated issue. 

That’s the great thing about being a writer versus a lawyer. Writers get to speculate, and we are not always right but it seems inevitable that copyright will eventually be awarded to AI-generated images within the jurisdiction of the United States.  

For now, at least in the US, we will be in some murky waters until either the Copyright Office or the courts clear things up. Yes, I know, that will take some time to say the least so it might be advisable to add other elements to your AI artwork that do require “human input” as the board sees it. 

Below are some links about the Thaler case: 

The Smithsonian 

Artnet 

The Verge 

Copyright Review Board Draft 

Midjourney Terms of Service 


 

M.D. McCallum, aka WarLord, is an international award-winning commercial graphics artist, 3D animator, published author, project director, and webmaster with a freelance career that spans over 20 years.  Now retired, M.D. is currently working part-time on writing and select character development projects. You can learn more about MD on his website.  

 

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