Can AI Art Be Copyrighted? Part One
Steven Strooh, May 18, 2023
The rise of artificial intelligence (AI) has had a profound impact on many industries, including the arts. Artists around the world are now creating AI-generated art, and it is raising several copyright questions.
I generated the image above using Adobe's Firefly, and this section shows the resolution increased 6x, which will allow it to be reproduced at wall size. There are many others, but I have also used Midjourney, which requires a Discord subscription. Then your subscription gives you an allotment of time with the Graphics Processing Units. Once your allotted time is up, you’re out of luck.
How Is AI Art Generated?
Like many types of AI, AI art generators use various algorithms and datasets to obtain, organize, and reproduce information. There are different types of generators, such as the standard text-to-image generator, whereby you can type a description, and the AI tool will generate art to match. You can also directly feed in your own images to create new AI pieces.
The algorithms use information from existing art pieces, styles, and imagery. AI-generated art is not newly imagined but made from existing ideas and images. This could be problematic since it often happens without the original artists’ consent.
Throughout 2022, the AI art generation became readily available to the public, and, as such, anyone with access to the internet can create and share AI artwork of their own. What does this mean for copyright around AI art?
Can AI Art Be Copyrighted?
Since AI art is created by algorithms, computers, and cross-wired information gathered over time, there is no one artist of a single AI art piece. By that logic, an AI art piece cannot be copyrighted by typical copyrighting standard practices.
One AI art generator, Deep AI, states on its terms of service page that all content created using its AI tools is copyright-free, including for all legal uses, such as personal and commercial gain. Adobe believes that its AI ethics allow it to differentiate its generative AI offerings from those of its competition.
In the United States, copyright authorship can only be granted to works created by a human that is sufficiently original, as well as a short list of other requirements. According to Shanti Escalante-De Mattei, writing in Artnews, “copyright only protects creations made by humans, [and that] will be the guiding principle for future judgments of the registration of works. When evaluating a work submitted for registration, copyright officials will be tasked with judging if the original choices executed in a work were produced by a human mind or produced mechanically.”
Of course, AI-produced art is not authored by humans directly nor made of original materials. Most countries worldwide follow similar practices, making AI-generated artwork unable to be copyrighted.
In the United States, copyright law protects "original works of authorship" fixed in a tangible medium of expression. This means that AI-generated art can be copyrighted by the “prompt engineer” who directs the AI application, but only if it meets the requirements of originality and fixation.
Originality
This is a relatively low bar to meet. A work is considered original if it is the product of the author's (human’s) own creative thought. This means that AI-generated art can be copyrighted even if created using a pre-existing algorithm or dataset.
Fixation
This requires that a work be recorded in a tangible medium of expression. This can be done in various ways, including writing, recording, photographing, drawing, or painting. AI-generated art can be fixed in multiple ways, including saving it as a digital file or printing it on paper.
Classic and Contemporary Artists
AI art is not a new phenomenon. In the early 1960s, computer scientist and artist Frieder Nake created a series of computer-generated images exhibited in galleries worldwide. In the 1970s, artists such as Harold Cohen and Charles Csuri began to use computers to create more complex and sophisticated works of art.
In recent years, there has been a resurgence of interest in AI art, as new technologies have made it possible to create more realistic and visually appealing images. Some of the most well-known contemporary AI artists include Robert Reed, Mario Klingemann, and Robbie Barrat.
This subject will be continued. Keep an eye open for Part Two.