AI-Based Images FAQ
I have been exploring LLM (large language model) based AI imagery since the beginning of the initial beta releases. Despite their initial poor quality, these creations fascinated me. The rapid growth of such services has made it challenging to keep up with all the new platforms. Currently, the quality of the generated visuals has advanced to the point where they are being used in advertising and various commercial projects. Major global brands have inquired about the legal use of these AI-generated images, and I have attempted to create a comprehensive list of these companies, along with my insights (although I am not a legal professional; for precise verification, it is advisable to seek legal counsel in your jurisdiction). This could help others in similar situations.
The US Copyright Office states that AI images cannot be copyrighted because they are not considered original works created by humans. However, you can still use them freely. Other legal restrictions, such as trademarks, patents, and platform contracts with users, may still apply.
AI images are not just any images. They are the result of complex algorithms that combine text and visual information to generate realistic or artistic images from natural language descriptions. Understanding this process can help you appreciate the intricacies of AI image creation.
Who Owns the Copyright in AI-Generated Images?
In traditional copyright law, the original creator typically retains control over how their images are used. However, the landscape becomes more intricate when it comes to AI-generated art due to the involvement of multiple contributors. In addition to the creator of the algorithm, those who provided input data and the users who influenced the outcome through their choice of settings may also have rights. This complexity is further compounded by the fact that in some jurisdictions such as the US, AI-generated art may not have a human author, potentially leading to the public being considered the rightful owners. This issue is currently under review by copyright offices worldwide.
In the case of stock images, the original creator maintains the rights and may choose to transfer them by uploading the images to free sites.
The USA Office of the Copyright's position on AI image rights is that only human authors can claim copyright protection for their original works of authorship. This means that AI-generated images, such as those created by neural networks, are only eligible for copyright registration if they incorporate some human input or intervention. The Office also states that it will not register works produced by a machine or a mere mechanical process that operates randomly without creative input and intervention from a human author.
Under current U.S. Copyright Office rules, a text prompt isn't considered human creativity. This means an image from just a text prompt can't be copyrighted because it lacks clear human authorship elements. When commissioning art, the AI interprets the instructions independently. The final work is not a collaboration between the AI and the person who commissioned it.
Substantial creative alterations to an AI-generated image, like integrating hand-drawn elements using software such as Adobe Photoshop or similar tools, might meet the criteria for copyright protection. Moreover, arranging AI-generated images in a specific order with a touch of human creativity and artistry—such as crafting a layout for a comic book—could also meet the requirements for copyright protection.
Midjourney AI
Midjourney is a platform that enables users to create and modify digital assets using various tools and features. However, ownership and usage rights of these assets are contingent upon whether the user is a paying member. Paid members have full ownership of the assets they create, with the exception of those that are upscaled from other sources, in which case the original creators retain their rights.
Non-paying members do not own the assets they create with the service. Instead, Midjourney grants them a license to use the assets for non-commercial purposes only, requiring them to credit Midjourney as the source. This license is based on the Creative Commons Noncommercial 4.0 Attribution International License.
When can AI-generated images be copyrighted?
Remember the following: The general rule is that there should be substantial human input in creating an image, not just providing prompts or setting parameters. If not, the image might be seen as derivative work, which is not eligible for protection and could infringe on existing artwork. Simply using AI to transform an image does not make it original or creative enough to be eligible for protection.
An effective approach to making AI-generated images copyrightable involves a two-step process. First, AI is used to produce the images, and then human creativity is employed to modify and combine them into new artworks. By extracting features from an AI-generated image and integrating them into another piece, the human contribution becomes more substantial. This enhances the likelihood of the final work being considered original and expressive.
For instance, if a specific image is requested and the AI produces an output, this output alone may not be eligible for copyright protection.
Difference Between Copyrighted Work and Copyrighted Characters
Characters created and copyrighted by someone else are protected by law and cannot be used without permission, even if depicted in a new picture. Creating new art based on someone else’s character does not constitute original or fair use.
Characters of Images in the Public Domain Images
Using AI to create new works based on public domain characters is a creative and innovative way to explore different possibilities and interpretations. Public domain characters are open for public use without worrying about copyright infringement. However, you can't claim exclusive rights over these characters. Acknowledging the source and respecting the original creator’s vision is important. Use your human artistry to enhance AI-generated work and ensure it doesn't infringe on any trademarks or intellectual property rights.
The Copyright Office in the United States is taking a hard line on AI-generated images. So far, the office has rejected at least three applications for copyright registration of such images. However, other countries are taking a more lenient approach. For example, the Beijing Internet Court in China ruled that an AI image of a woman created using Stable Diffusion could be granted copyright protection. This case sets a precedent for other courts to consider when deciding whether to grant copyright protection to AI-generated images.
What are the potential risks of using AI Content?
The content created with AI may violate copyright if it closely resembles protected works. This is not common, as AI systems are frequently trained on datasets that include copyrighted works, and it's often unclear whether the rightsholders have given prior authorization. Mere similarities in the style of AI-generated content and copyrighted works do not necessarily constitute copyright infringement, as style elements are not protected by copyright.
Can I Use AI-Generated Images for Commercial Purposes?
The ability to use AI-generated images for commercial purposes depends on the terms of service of the AI tool used and the jurisdiction’s copyright laws. For instance, some platforms, like Midjourney, provide commercial rights to paying members, while others may restrict commercial use. Always check the AI tool's specific licensing agreements and terms of service to understand your rights.
What Are the Benefits of Using AI-Generated Images?
AI-generated images can save time and resources, allowing for the rapid creation of visuals that might otherwise be time-consuming or costly. They can also offer fresh perspectives and novel designs that humans may need help to conceive. Additionally, AI tools can help artists experiment with different styles and concepts, pushing the boundaries of their creativity.
Can AI-Generated Art Be Used in Branding and Marketing?
Yes, AI-generated art can be effectively used in branding and marketing to create unique and eye-catching visuals. However, it’s important to ensure the images are original and do not infringe on existing copyrights. Using AI art in branding can set a company apart by showcasing innovative and cutting-edge design elements.
If you have any other questions, feel free to add them in the comments section.
