Special Issue
A view from the creative frontlines
Idea amplification is the really exciting potential of generative AI
Why artists shouldn’t fear AI
How to stop runaway AI
These “AI Artists” don’t want to ape existing art — they want to create something new entirely
Is the disruption caused by AI art actually new, or does it just feel new?
The ”Creative Singularity” came and went. Now what?
A copyright lawyer and fair use expert weighs in on the legal implications of these new AI technologies.
By Brandon Butler
Fair use is a flexible, open-ended limitation on copyright that is meant to protect uses that further the purpose of copyright itself. So by exploring copyright’s outer limits through fair use, we better understand copyright and its proper place in the regulation of information.
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The past six months or so have seen the seemingly sudden appearance of several startlingly powerful AI tools that create complex new textual and visual works in response to relatively simple prompts. You probably know at least a couple by name: ChatGPT (for text) and Stable Diffusion (for images) are the ones that seem to have taken over my social feeds. These tools are creating a buzz in part because the works they generate are sometimes good enough to pass for or replace the work of humans, at least in some contexts. This raises a laundry list of policy questions, some as old as the story of John Henry (will machines put humans out of work?), others as 21st-century as data sovereignty (how can nations govern data pertaining to their citizens when it flows seamlessly around the globe?).
The inevitable raft of copyright lawsuits raises one key legal question that threatens to stop these AI models in their tracks: Do the creators of these tools need permission from the copyright holders of the works they use to “train” their AI models? After all, building these models requires having AI analyze huge bodies of existing works, and that analysis involves massive amounts of copying of the works involved. The outputs of these models may be new works, but the AI can’t generate new and meaningful output unless it has access to existing works as input.
Do the creators of these tools need permission from the copyright holders of the works they use to “train” their AI models?
Lots of smart people have opined on the proper copyright analysis of AI already, so I don’t want to go too deeply down this rabbit hole myself. The technical legal answer I favor is straightforward, and the very short version is that there’s no meaningful difference between these tools and the other “non-consumptive” / computational uses that courts have already blessed as fair use many times over. These uses are fair (meaning outside the exclusive rights of the copyright holder, free for all) because precedent pretty clearly says they are. What copyright tells us about AI is, in my opinion, not necessarily that interesting. (At least not yet, though of course the courts and the Copyright Office may make things more interesting in the coming months and years.) Maybe I’m being too glib about the technical legal answer, but in any case, I want to answer a different question: What can AI tell us about copyright?
If we think carefully through why copyright principles tell us AI training is fair use, we get a kind of guided tour through the most important and foundational values in the US copyright system. Fair use is a flexible, open-ended limitation on copyright that is meant to protect uses that further the purpose of copyright itself. So by exploring copyright’s outer limits through fair use, we better understand copyright and its proper place in the regulation of information.
Copyright is for the public good
A foundational question in the debate about AI and copyright is: Whose interests should copyright ultimately protect? The answer is made clear, at least in the United States, where Article I, Section 8, clause 8 of the US Constitution specifies the purpose of copyright: “to promote the progress of Science and the useful Arts.” Granting copyrights “for limited times” (a term of 14 years at the time that clause was written) is a means of promoting the public good.
Congressional action has not always been guided by this principle (witness the extension of copyright term by more than a century despite little evidence of any public benefit), but courts, especially the Supreme Court, acknowledge copyright’s public interest purpose all the time. For example, here’s Justice Kagan in Kirtsaeng v. John Wiley & Sons, Inc.:
“[C]opyright law ultimately serves the purpose of enriching the general public through access to creative works.”
And Justice O’Connor in one of my personal favorites, Feist Pubs., Inc. v. Rural Tel. Svc. Co., Inc.:
“The primary objective of copyright is not to reward the labor of authors, but ‘[t]o promote the Progress of Science and useful Arts.’”
And Twentieth Century Music Corp. v. Aiken:
“[P]rivate motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”
“The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors.”
So, in cases where the private monopoly of copyright comes into direct and repeated conflict with the public good, fair use is applied to bring the system back into balance.
Copyright’s limited check on competition
It is sometimes suggested that AI will compete unfairly with human artists, and copyright should offer protection against this kind of competition—the John Henry story. Copyright is indeed a protection against competition, and it puts the brakes on activity that would otherwise lower prices, and reduce barriers to information. If anyone could make and sell (or share for free) copies of any published book, for example, the price of books would very quickly fall toward zero. So, too, would many authors’ and publishers’ interest in writing and publishing new books.
Accordingly, copyright protects authors and publishers for a limited time from a specific kind of competition: competing with copies or certain infringing derivatives (sequels, translations, movie versions, etc.) of their own works. It does not protect authors from other kinds of competition. The public generally benefits from access to lots of works in the same genre, or even in the same style, and copyright law generally does not interfere with this kind of competition.
My Charlottesville neighbor Edgar Allan Poe may have more or less invented the detective story, but once he showed the way, any author was free to follow in his footsteps. And thousands have, exploring every possible iteration from hard-boiled to Scandinavian, and the public gets the benefit. No one (other than perhaps Poe’s heirs) would argue that it was somehow unfair for other authors to try their hands at the detective genre, or that Poe should have received royalties or had a veto over these new stories. All else equal, copyright doesn’t stand in the way of new creations, even when they are in some ways built on the elements of other people’s work. (And of course everything, ultimately, is.)
All else equal, copyright doesn’t stand in the way of new creations, even when they are in some ways built on the elements of other people’s work. (And of course everything, ultimately, is.)
Similarly, the works created by generative AI may compete with human creators, but not in a way that copyright gives anyone the power to prevent. Just as a human creator is free to read Murders in the Rue Morgue and then write their own story with an eccentric detective solving a mystery alongside the reader, so, too, can an AI bot “read” a corpus of mystery novels in order to learn to write one on its own. Giving us more new works that give us the kind of pleasure we have found in existing works is not a bug, from a copyright perspective, but a feature, as long as the new works are not themselves infringing.
Fair use protects against copyright literalism in the digital age
But of course, unlike Sir Arthur Conan Doyle (whose Sherlock Holmes stories fit very nicely into Poe’s Rue Morgue template), an AI model has to literally copy existing works in order to metaphorically “read” them and develop a model for creating a new detective story. Should that make a difference? No, because fair use limits the literal application of copyright when it would undermine copyright’s more general purposes.
The Supreme Court emphasized this role in its most recent fair use opinion, Google v. Oracle. In that case, Justice Breyer describes the role of fair use in the context of software copyrights:
“…fair use can play an important role in determining the lawful scope of a computer program copyright… It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.”
As examples of how fair use has played this role in the past, Justice Breyer cited cases like Sony v. Connectix and Sega v. Accolade, cases where software engineers made copies of protected works in a process that resulted in the development of new, non-infringing software. Yes, these cases say, there is literal copying involved in this process, but the end result (and the only thing offered to the public in competition with the works that were copied “behind the curtain”) is something new and non-infringing — exactly the kind of creativity that copyright is meant to promote, not discourage. So, fair use acts as a context-based check on the otherwise overly broad literal scope of copyright’s exclusive rights, shielding these intermediate, back-room, pro-competitive copies from liability and enabling the creation of valuable new works.
[An] AI model has to literally copy existing works in order to metaphorically “read” them and develop a model for creating a new detective story. Should that make a difference?
Similarly, in the Oracle case, Justice Breyer held that Google had created a valuable new work in the Android mobile operating system and that the use of elements of Oracle’s Java language to enable programmers to interact more easily with Android was fair.
Fair use unlocks unprotected elements of protected works
In-copyright works contain all kinds of things that are not themselves protected by copyright. Facts, for example, are often recorded or revealed for the first time in copyright-protected works, but they are free to all. For example, in Miller v. Universal City Studios, an author who revealed important facts about a famous kidnapping case in his deeply researched book could not use copyright to prevent a movie studio from incorporating those facts in its film based on the true story, even if discovering the facts took lots of hard work by the author.
In that context, the unprotected facts were taken from the book by a human reader, who then incorporated them into the film’s screenplay. For an AI “author” to learn and incorporate facts from previous books into its new work, it would first have to literally copy the entire book where the facts are found—including not only the unprotected facts but the protected expression, too. Should that make a difference?
No. Here again, as in the case of genre and style, fair use would enable the literal copying of protected text in order to discover and reuse the unprotected facts. We know this because this was exactly what happened in the Google Books case. Google partnered with university libraries to digitize and analyze millions of books in their collections, using that data to reveal facts as simple as “Which books include references to Albert Einstein” or as complex as “When did books start referring to ‘the United States’ as a singular collective noun (‘the United States is’) rather than a plural (‘the United States are’)?” In that case, the court said that discovering these facts, and making them readily available to anyone, is a socially valuable activity that serves copyright’s core purpose, “promoting the progress of science,” and at the same time poses no unfair threat of competition to the works that are digitized.
Conclusion
So what have we learned? Copyright may protect authors in the first instance, but ultimately its role is to further the public good. Copyright regulates competition, but only in specific ways. Fair use is an essential bulwark against copyright literalism in the digital age. And finally, fair use can help technology to unlock free aspects of protected works. I can’t say, yet, whether I welcome our new robot overlords. I’m not even sure if they will be our overlords. But I have certainly appreciated the way that thinking about them has helped to sharpen my own thinking about copyright.
FAQs
How artificial intelligence works in relation to copyright? ›
According to the policy statement, works created by AI without human intervention or involvement still cannot be copyrighted, as they fail to meet the human authorship requirement.
Is copyright fair use for artificial intelligence? ›From one side, the use of copyrighted material for training AI models might be considered fair use, as long as it falls under certain categories such as educational content, criticism, news reporting, or research. However, this does not apply to the generation of content.
Can you train AI on copyrighted material? ›Training artificial intelligence with image datasets
Downloading and creating the training dataset is considered a reproduction of those works. This is not allowed unless you have permission for all copyright protected materials or if you can rely on a statutory exception.
A leading AI research company OpenAI contends that including copyrighted material in datasets for machine learning is fair use because it is “non-expressive intermediate copying.” According to OpenAI, the purpose and character of the use are transformative.
What is the role of AI in intellectual property rights? ›The protection of AI algorithms falls under the same legal framework as the traditional software. Algorithms, like many IPR law regimes, cannot be patented or copyrighted per se and can be normally protected as a part of the computer program.
Does AI violate copyright? ›In a decision that could have far-reaching implications for artists, the U.S. Copyright Office (USCO) has stated that AI-generated images are not protectable under current copyright law, as they “are not the product of human authorship.”
Who owns copyright in artificial intelligence? ›'In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. ' — Section 9(3) CDPA 1988.
Are AI generated images copyright free? ›Copyright Can Only Apply to Human-Made Works
In its new guidance, the USCO has reaffirmed they're still going by this definition. In consequence, AI-generated images cannot be copyrighted because they are not, in fact, produced by a human but by a machine.
Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.
What are copyright issues with AI art? ›Yet when it comes to registering the copyright of these images, so far the US copyright office has said that AI images are ineligible because they lack human authorship. It could be the case that the creators of the AI software are the true copyright holders, because they created the software that created the image.
What's the best AI image generator? ›
| Sr. No. | AI Image Generator | Best for |
|---|---|---|
| 1. | Jasper Art | Best for creating images in different styles |
| 2. | Starry AI | Best for creating and owning images |
| 3. | Dream by Wombo | Best for beginners |
| 4. | Nightcafe | Best for generating creative images |
Ownership of AI generated images, including enforceability, is subject to ongoing debate. Some generative AI software programs state in their terms of use that they retain ownership of the images that are created. Others argue that AI generated images belong in the public domain.
Is training an AI fair use? ›As discussed, fair use cases involving generative AI training on copyrighted works will be highly fact dependent. While some AI-related uses may qualify as fair use, unauthorized use of copyrighted material to train AI systems cannot be handwaved by a broad fair use exception that disregards the rights of creators.
Can you train AI on your own art? ›Train Your Own Creative AI
Playform is the only proprietary AI software that lets you train your own AI with as few as 30 images. New users get $15 in free training credits. This opens in a new window.
Training AI as fair use
Finally, as discussed above, since the purpose of copyright law is to encourage the new creative works, to promote learning, and to benefit the public interest, fair use should permit using copyrighted works as training data for generative AI models like Stable Diffusion and Midjourney.
AI systems also raise issues regarding the freedom of expression and the freedom of association, for example. The most striking examples of this probably come from China, where the regime uses AI to censor speech related to anti-lockdown protests, among other things.
How does artificial intelligence challenge human rights? ›The report warned of AI's use as a forecasting and profiling tool, saying the technology could have an impact on "rights to privacy, to a fair trial, to freedom from arbitrary arrest and detention and the right to life."
How can AI technology help us write right? ›Machine learning, a branch of AI technology, is used by AI writing assistants to aid content authors with data analysis, grammar, and tone in the writing process. They evaluate texts using natural language processing (NLP) and offer pertinent content recommendations.
Do AI images violate copyright? ›Despite the originality of the artwork, the U.S. Copyright Office has taken the position that AI generated images themselves are not entitled to copyright protection, as they are not the product of human authorship and therefore do not meet the definition of original.
Can AI own intellectual property? ›Patent law generally considers the inventor as the first owner of the invention. The inventor is the person who creates the invention. In the case of autonomous AI generating an invention, there is no legal owner as the AI technology cannot own the invention.
What is the controversy with AI generated images? ›
AI-generated images breach copyright law, artists say Artificial intelligence has advanced enough to create a seemingly original artwork in the style of living artists within minutes. Some artists argue that these AI models breach copyright law.
What are the 4 fair use exceptions to copyright? ›Fair use of copyrighted works, as stated in US copyright law, “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”
What are the 4 factors of fair use? ›- Factor 1: The Purpose and Character of the Use.
- Factor 2: The Nature of the Copyrighted Work.
- Factor 3: The Amount or Substantiality of the Portion Used.
- Factor 4: The Effect of the Use on the Potential Market for or Value of the Work.
- Resources.
For example, in the United States, copyright rights are limited by the doctrine of "fair use," under which certain uses of copyrighted material for, but not limited to, criticism, commentary, news reporting, teaching, scholarship, or research may be considered fair.
How can AI artwork avoid copyright infringement? ›Here are things to do and things to avoid when using AI-Generated Art: Use AI to create works that are sufficiently different from existing works to avoid copyright infringement. This can be done by using different datasets, unique prompts, and parameters to create unique pieces.
What is the impact of AI on art? ›Acceleration of the creative process
AI tools and techniques allow artists to create works in a fraction of the time it would take using traditional techniques. For example, GANs can generate realistic images in a matter of seconds, whereas manually creating a similar image could take hours or even days.
There has been an explosion of software that uses AI to generate artwork on the fly. Now, working artists say these systems are unethical because they trained using artists work, and without their permission.
What is the AI generator everyone is using on TikTok? ›The rendered images are created by a software called Lensa which was created by Prisma AI.
What AI photo is everyone using? ›Lensa is the AI photo editing app everyone is using on Instagram!
What AI art generator is everyone using? ›The most popular ai painting generator known to the public is Dall-E-2 image generator, an AI image generator developed by OpenAI. In just a few minutes, you can create highly realistic images with AI technology.
How do I make sure AI is ethical? ›
Along with ensuring data security, responsible AI practices should eliminate biases embedded in the models that power it. Companies should regularly evaluate bias that may be present in their vendors' models, then advise customers on the most appropriate technology for them.
Can AI improve fairness and remove bias? ›Through openness and collaboration, open source data science, far from being the only answer for a more ethically-driven AI, can help reduce bias and bring more fairness and equity to the world.
Why is AI fairness important? ›It allows teams to explore concepts of fairness from various disciplines and think about what fairness could and should mean for a particular AI system. It helps teams understand what terms are being used, promote debate and develop a shared understanding.
Do I own the AI art that I create? ›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.
Can you run your own AI image generator? ›Training my AI Image Generator
Training your own image generator is not difficult at all. There are a number of guides available online if you need help, and it's basically all very straightforward. You need to just open the Colab notebook, upload your pictures, and start training the model.
As for how you can make money from an AI art generator, there are several potential ways: Selling prints or digital copies of AI-generated art online or in galleries. Offering commissions to create AI-generated art for clients. Licensing AI-generated art for use in advertising, design, or other commercial applications.
Can work generated by an algorithm be protected under copyright? ›AI-generated works are not applicable to the copyright protection requirements because they are not the result of human creativity. AI-generated works should be eligible for copyright protection because they are the product of complex algorithms and programming.
Is machine learning fair use? ›The Ministry of Justice believes that Machine Learning should be considered “self-study” or “research” and that, in many cases, the use itself will be “fair” because the process of Machine Learning is typically a transformative process that does not affect the value of the work.
Can you copyright a neural network? ›The principal forms of intellectual property protection for neural networks in the United States include patents, copyrights, trade secrets, and mask works.
Who owns copyright to AI works? ›Some platforms like DALL-E 2 and Midjourney state that the user is the person who owns the copyright. However, as computer-generated works have “no human author”, it appears that the concept of “joint authorship” does not apply to works co-created by humans and AI systems.
Who owns copyright in AI created works? ›
Microsoft developed the Word computer program but clearly does not own every piece of work produced using that software. The copyright lies with the user, i.e. the author who used the program to create his or her work.
Who owns copyright to AI generated images? ›Ownership of AI generated images, including enforceability, is subject to ongoing debate. Some generative AI software programs state in their terms of use that they retain ownership of the images that are created. Others argue that AI generated images belong in the public domain.
Can AI be patented in the US? ›Last year, in the case of Thaler v. Vidal, the Federal Circuit affirmed that only natural persons (i.e., human beings) can be named inventors on U.S. patents, thereby excluding artificial intelligence from being listed as an inventor per se.
Can AI create original art? ›Nowadays, it's simply referred to as AI-generated art. Thanks to major technological developments in the field of generative AI systems, just about anyone can produce stunning AI images just by describing what you want to see. Whether you have ever picked up a paintbrush or not, you can create amazing art using AI.
Can I sell AI-generated art as my own? ›Yes, you can sell your AI-generated art. You will need to ensure that the artwork is unique and of high quality to attract buyers. Additionally, it is important to understand copyright laws and other legal considerations when selling digital products online.