Navigating Copyright Law in the Complex Landscape of Generative AI

**The Impact of Generative AI on Ownership and Authorship in the Art World**
Generative AI, an innovative technology that uses prior artworks to create new artistic outputs, has become a topic of controversy and debate within the art world. As artists like Jason Allen use AI tools like Midjourney to win prestigious art competitions, questions surrounding ownership, authorship, and compensation have arisen. In a recent paper published in Science magazine by a team of 14 experts, the impact of generative AI on creative work, aesthetics, and the media is explored. One key question that emerges is whether current U.S. copyright laws can effectively address the unique challenges posed by generative AI.

**Drawing Parallels Through History: The Emergence of Photography**
The emergence of photography in the 1800s provides a helpful lens through which to understand the impact of generative AI. Initially, many argued that photography lacked artistic merit. However, the U.S. Supreme Court ruled in 1884 that photographers should own the photographs they create, recognizing that cameras were tools used by artists to give visible form to their ideas. This decision transformed photography into its own art form and sparked new artistic movements.

**The Distinction: AI vs. Inanimate Cameras**
Unlike cameras, AI possesses capabilities that make it prone to anthropomorphization. The term “artificial intelligence” itself fosters the perception that these systems have human-like intent or even self-awareness. This raises questions about whether AI systems can be considered “owners.” However, the U.S. Copyright Office asserts that only humans can hold copyrights. Therefore, the question of who can claim ownership of images produced by AI remains unresolved. Are the artists whose images were used to train the AI systems the rightful owners? Or is it the users who input prompts to generate the images? Perhaps it is the individuals who build the AI systems.

**Copyright Infringement or Fair Use?**
Generative AI relies on training data, which often consists of prior artworks protected by copyright law. This raises concerns about potential copyright infringement even before the AI generates a new work. Jason Allen’s award-winning art, for example, was created using Midjourney, trained on 100 million prior works. Was this a form of infringement? Or was it a new form of fair use, wherein protected works are transformed into something new? It becomes even more complex because AI systems can sometimes recreate works from the training data, further complicating the legal analysis.

To address these concerns, scholars have proposed new regulations that protect and compensate artists whose work is used for training AI. Suggestions include giving artists the option to opt out of their data being used or implementing automatic compensation when their work is used to train AI. However, training data is just one part of the process. Artists who use generative AI tools often go through iterative rounds of revision to refine their prompts, demonstrating a degree of originality.

**Determining Ownership: Analyzing Contributions in the Generative AI Supply Chain**
Determining who should own the outputs created by generative AI involves examining the contributions of all those involved in the generative AI supply chain. When outputs are distinct from the works in the training data, the default owner appears to be the individual who prompted the AI to produce the output. However, copyright law requires meaningful creative input, making it unclear how courts will assess the use of generative AI. Does composing and refining a prompt meet this standard?

The situation becomes more complex when the outputs resemble works in the training data. If the resemblance is based on general style or content, it is unlikely to be a copyright violation as style is not copyrightable. However, if an output contains major elements from a work in the training data, it may infringe on that work’s copyright. Recent Supreme Court rulings highlight that using AI to simply change the style of a work, such as from a photo to an illustration, does not grant ownership over the modified output. Harvard Law School scholars have proposed new models of joint ownership, allowing artists to have some rights in outputs that resemble their works.

**Generative AI: A Creative Tool with Implications for the Future of Creative Expression**
Generative AI is a new and innovative creative tool that grants access to image-making to a wider group of individuals, similar to cameras, paintbrushes, or Adobe Photoshop. However, the reliance on training data in generative AI makes it challenging to trace creative contributions back to a specific artist. The interpretation and reform of existing laws, as well as the recognition of generative AI as the tool it is, will shape the future of creative expression.

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