Yes, works made with an AI can be copyrighted.

In fact in most cases works made with an AI, just like works made with a typewriter or a paintbrush or Photoshop, are copyrighted by the human who created them, the moment that they are “fixed” (to use the wording of the Berne convention). I’m writing this page mostly to address the many statements to the contrary that are all over the web, and that people keep posting on the MidJourney Discord and so on, so that I can like link to this page whether than typing it in yet again every time someone says it.

But I read that a series of rulings found otherwise!

Yes, sadly, I’m sure you did. Here are just a few samples of this misinformation (one is especially disappointed in Smithsonian Magazine, ffs). But if one reads beyond the misleading headlines, these are all about two decisions by the U.S. Copyright Office in the case of Thaler, and (tl;dr) all those decisions do is reject the theory that an AI can create something as a “work for hire”, and the person using the AI thereby get the copyright to it as the “employer”. Since in US law only persons or “individuals”, not including software or computers, can be “creators in fact” of a creative work, they reject that theory.

The decisions in the Thaler case most definitely do not say that a person who uses an AI program in the ordinary way, just like a person who uses a paintbrush in the ordinary way, doesn’t come to own the copyright to that thing automatically, in the ordinary way (as nicely explained here). And in various other countries, the copyright laws explicitly account for things generated by or with an AI, and acknowledge that copyright applies to them (see for instance this short survey).

(If you’re here just because someone posted you this link when you said that images made using AI can’t be copyrighted, that’s all you need to know, but feel free to read on etc!)

But when a person uses an AI, all the creativity is in the AI, so the person shouldn’t get a copyright!

No court case that I know of, in any country, has ever ruled this way. One might as well argue (and people did, when the technology was new) that there is no creativity in a photograph, since all you do is point the camera and push a button. And yet it’s (now) uncontroversial that people get copyright in the photographs that they take.

It’s easy to take a picture, but a good photographer picks a camera and lenses, decides where to point it and in what light to press the button, and then decides which images to keep. It’s easy to use an AI to make a picture, but a good user of an AI image tool picks an engine and settings, decides what prompt(s) to give it and with what switches to invoke it, and then decides which images to keep. I think those are very analogous; you may disagree. The courts have not yet weighed in as of this writing, but it seems to me that denying copyright because a particular kind of software was involved in a certain way would be a mess that courts would not want to wade into.

If there hasn’t been a positive ruling in the US, though, it could turn out…

I agree, since the law doesn’t explicitly say that a person using an AI to make an image has the copyright in the image, and because the “all the creativity is in the AI” argument does exist, it’s not impossible that some US court could find that way. So one might not want to risk anything really important on that not happening.

What’s up with Thaler, anyway?

Thaler is, well, an interesting character, it seems. He believes that some AI programs he has created have had “near death experiences”, and he has attempted to obtain patents with an AI program as the inventor, as well as the attempts to cast them as work-for-hire employees for copyright purposes, as mentioned above. An individual before his time, perhaps. Perhaps.

Update: What if the ToS of a service says…

As a couple of people asked / pointed out after I posted this, sometimes the Terms of Service on a site where you can create stuff, says or implies that you do not own the copyright to the stuff, but they do, and they grant you some sort of license.

The MidJourney ToS, in fact, currently says that “you own all Assets you create with the Services” with a few exceptions including ‘If you are not a Paid Member, Midjourney grants you a license to the Assets under the Creative Commons Noncommercial 4.0 Attribution International License (the “Asset License”).’ This is a bit terse and ambiguous, but the obvious interpretation is that in that case MidJourney owns the Assets, and grants the user a certain CC license.

As far as I know, it isn’t well-established in IP law whether a ToS can unilaterally change who owns what like this; if anyone knows more, I’d be interested! But in any case, this sort of thing still says or implies that someone owns the rights, so it doesn’t directly impact the overall subject here.

Update 2: Show me an actual AI artwork that is registered with the US Copyright office!

Funny you should ask! :)

Update Infinity: Lots more stuff has been happening since this was originally posted!

See the Copyright tag on the weblog here.

This is boring, post a picture!

A strange surreal owl-thing or something

4 Responses to “Yes, works made with an AI can be copyrighted.”

  1. Does Night Cafe not state that copywrite on our images stays with them? I thought I read that when I joined. Also, another thought that comes to me fleetingly, is that Night Cafe must have a VAST collection of trillions of images – useful? – for what? Thoughts please!

    Liked by 1 person

    • The NightCafe terms of service says “Any and all Intellectual Property Rights subsisting in any materials developed, adapted, modified or created by you (including in connection with the Terms, your use of the NightCafe Services and your Artwork) (Your Intellectual Property) will at all times vest, or remain vested, in you upon creation”, and there is even further language saying basically that if any rights accidentally adhere to them, they explicitly transfer them to you. So they are very much on the “user has copyright” side.
      On the other hand, it’s very true that a ToS or other agreement could potentially cause things to be different; I should have mentioned that. Maybe I’ll do an update.

      I can’t think offhand of what use a huge collection of images would be, given that they were all generated by people using their software. Their collection of prompts might be interesting psychologically. :)




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