Is AI Art Copyrightable?

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2023-01-24 21:00:10

Art created by a generative AI platform (like Stability or Midjourney) is potentially copyrightable. The fact that an AI platform was used does not, by itself, prevent the resulting art from receiving copyright protection. However, the art is only copyrightable if the human artist’s prompt contained sufficient expressive input. Copyright requires some human authorship and some minimal creativity.

Generative AI models are trained on massive sets of image data. And the training images are often scraped from the internet without permission. Once the AI is up and running, a human user can type in a short prompt, and the software will return incredible images.

Does the person who entered the prompt own the copyright to the resulting image? I’m not aware of any US caselaw (as of Jan 2023) that directly answers this question, so here’s an analysis from first principals.

The US Copyright Act protects “original works of authorship.” 17 U.S.C. § 102(a). To qualify as “authorship” the work must be created by a human being. Burrow-Giles Lithographic Co. v. Sarony (1884). There is no copyright for works produced by nature, animals, plants or machines. The crucial question is whether the “work” is basically one of human authorship, with the software merely assisting, or whether the software actually conceived and executed the traditional elements of authorship (i.e., the artistic expression).”

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