The US Copyright Office has set one of the first major precedents for AI-generated art.
When “Zarya of the Dawn” author Kris Kashtanova filed her copyright registration for the literary work, she included the images throughout the book in the application but did not disclose they were created using AI-art generation software Midjourney.
Midjourney is, according to its website, “an independent research lab exploring new mediums of thought and expanding the imaginative powers of the human species.”
In the United States, for something to have copyright protections it has to be the “product of human authorship.” In Kashtanova’s case, the US Copyright Office recused the protections for pictures generated by Midjourney, but the copyright for the arrangement and book’s text remain.
“The fact that Midjourney’s specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists,” the Copyright Office’s letter reads.
In October 2022, the Copyright Office informed Kashtanova it would reconsider her registration.
Thankfully, the office responded positively and set a precedent for AI-art generation programs for all intellectual property, but this shows that governing bodies are beginning to challenge applications and registrations that contain AI-generated art.
Does the US Copyright Office understand how AI works?
Based on the US Copyright Office’s response to Kashtanova’s registration, I don’t believe they’re fully understanding what it takes for these AI-art generation programs to function properly.
I’ve personally never used Midjourney, but I’ve used OpenAI’s Dall-E a bit, so I’ll use that as an example. In order for Dall-E to generate an (usable) image, it will need a descriptive set of instructions to be inputted by a human. Giving it as many perspectives and introspections as possible helps the program deliver the most accurate image. Therefore, in my eyes and I’m sure attorneys and creatives alike would agree, the art does in fact have “human input.”
It requires a lot of focus, thought, and understanding to transfer your creative vision into words for a software program to generate it. There are even jobs where you’re positioned to know how to communicate with AI to achieve a highly specific outcome for a business or client.
While the US Copyright Office’s recusal of an author’s copyright set a small precedent, there’s still a lot of gray area when it comes to AI-generated music and graphics.
Do I own the copyrights for pictures created with Dall-E, Midjourney, or Stable Diffusion?
For clarity, I’m not and attorney. I’ve never used Midjourney or Stable Diffusion before, but I have used Dall-E. So I looked up Dall-E’s terms use and content policies. Dall-E does in fact grant you full copyright ownership over all of the art and prompts you input into the program.
“As between the parties and to the extent permitted by applicable law, you own all Input, and subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output.”
It’s worth noting that OpenAI does retain the right to use the content you generate to maintain its services and comply with any laws.
“OpenAI may use Content as necessary to provide and maintain the Services, comply with applicable law, and enforce our policies. You are responsible for Content, including for ensuring that it does not violate any applicable law or these Terms.”
Even though you own the copyright, you can’t receive copyright protections.
It’s strange–and confusing, but allow me to explain.
In copyright law, something is copyrightable when it is made tangible, this includes digital. So, you technically own the copyright to the text you input and the output images (if you’re using Dall-E, as explained above).
Different programs will have different terms and conditions, so be sure to read them thoroughly to understand what your rights are.
What’s the problem?
Even though you own the copyrights, you can’t federally register that art with the United States Copyright Office. This means that you’re unable to sue for damages, which can tower upwards of $250,000 per infringement. In Kashtanova’s case they don’t consider AI-generated art the “product of human authorship.”
For example, if you’re a musician and you create your next album, single, or EP art with Dall-E or Midjourney, those images will not be eligible for copyright protections. If someone steals that cover art and uses it as their own cover art, you can’t sue them because it’s not registered with the Copyright Office.
Is the music industry next?
The music industry has long been at the forefront of cutting-edge technology. As the boom in NFTs, community building, and Web3 has given artists yet another avenue to monetize their fanbases. With the global economy in uncertain times, artists and musicians are being squeezed for their very last penny. Since AI is much cheaper than paying a graphic artist to create your art, musicians are going to turn to easier, more affordable solutions. A lot of these graphics, NFT art, and projects will likely be AI-generated art.
In fact, musicians are heavily integrating AI-generated solutions into their workflows. Multiple plugins used to create various sounds, mix, and master music are integrated with AI.
The AI revolution is here, and the music industry will have to embrace it.
The music industry is not getting away from AI.
Most companies, if not all, working in music are actively using AI to streamline certain business operations or improve their products. Plugin developers are using it to rid the guesswork in mixing and mastering, music creation, and various business processes like digital marketing.
Social media services like Facebook are using AI to improve your ad campaigns.
Zooming out and looking at other industries, such as technology, automotive, or even construction, they’re all finding ways to leverage the power of artificial intelligence to improve safety, efficiencies, and cut costs.
What does this mean?
If you want to work in music, you’re going to have to embrace AI. Learn how it’s improving these businesses and even your career. Understand what it’s capable of and find ways to use it to your advantage.
This is the next big thing in technology, and it’s going to be with us for quite a long time.