Glossary

8.2 Copyright and ownership

10 min read•august 19, 2024

AI-generated art is reshaping copyright and ownership concepts in the creative world. As machines become more involved in the artistic process, traditional notions of authorship, originality, and rights are being challenged and redefined.

This evolving landscape raises complex questions about fair use, derivative works, and licensing for AI art. It also sparks debates on , international copyright laws, and potential legal changes needed to address the unique characteristics of AI-created works.

  • AI-generated art raises new questions about copyright ownership and protection as the role of the human artist and the AI system in the creative process becomes increasingly intertwined
  • Copyright laws, which were designed to protect human-created works, must adapt to address the unique challenges posed by AI-generated art, such as determining authorship and ownership rights
  • The use of AI in creating art has the potential to revolutionize the art industry, but it also requires a reevaluation of traditional copyright concepts to ensure fair protection and attribution for all parties involved

Ownership of AI creations

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  • Determining ownership of AI-generated art can be complex, as it involves considering the contributions of the human artist, the AI system, and the developers of the AI algorithm
  • Factors that may influence ownership include the level of human input and creative control, the specific AI model used, and any agreements or licenses in place
  • In some cases, the human artist may be considered the sole owner, while in others, joint ownership between the artist and the AI developer or the AI itself may be argued

Fair use and AI

  • Fair use is a legal doctrine that allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research
  • The application of fair use to AI-generated art is still being explored, as it requires considering factors such as the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use upon the potential market
  • AI systems that create art based on training data from copyrighted works may face challenges in claiming fair use, depending on the extent and nature of the borrowing

Derivative works by AI

  • Derivative works are creations based on or derived from one or more preexisting works, such as adaptations, translations, or remixes
  • AI-generated art that builds upon or transforms existing works may be considered derivative works, raising questions about the ownership and copyright status of the resulting creation
  • The legal treatment of AI-generated derivative works is still evolving, and it may depend on factors such as the level of originality and transformative nature of the AI's contribution

Licensing AI art

  • Licensing is a way for copyright owners to grant permission for others to use their work under specific terms and conditions
  • AI-generated art can be licensed using various models, such as exclusive or non-exclusive licenses, royalty-based or flat-fee arrangements, and limited or perpetual duration
  • Clear licensing agreements can help clarify ownership rights, usage permissions, and compensation for AI-generated art, providing a framework for artists, AI developers, and users to collaborate and benefit from the technology

AI and public domain

  • The public domain refers to creative works that are not protected by intellectual property rights and can be freely used by anyone without permission or compensation
  • As AI systems increasingly rely on public domain works for training data and inspiration, questions arise about the boundaries between public domain and AI-generated art

Expiration of copyrights

  • Copyrights have a limited duration, after which the work enters the public domain and can be used freely by anyone
  • The expiration of copyrights on works used to train AI systems can impact the legal status and ownership of the resulting AI-generated art
  • As more works enter the public domain over time, AI systems may have access to a growing pool of training data, potentially influencing the development and diversity of AI-generated art

AI use of public domain

  • AI systems can leverage public domain works as training data to learn patterns, styles, and techniques without the need for permission or licensing
  • The use of public domain works by AI raises questions about the originality and authorship of the resulting AI-generated art, as well as the potential for AI to create derivative works based on public domain materials
  • The ability of AI to access and build upon public domain works may have implications for the art industry, as it could enable the creation of new works that are inspired by or pay homage to classic and culturally significant artworks

Ownership disputes

  • As AI-generated art becomes more prevalent, disputes over ownership and authorship are likely to arise, challenging traditional notions of copyright and intellectual property
  • Ownership disputes may involve disagreements between human artists, AI developers, and other stakeholders involved in the creation and use of AI-generated art

Human vs AI authorship

  • One key area of dispute is the question of whether the human artist or the AI system should be considered the author and owner of the resulting artwork
  • Arguments for human authorship may emphasize the role of the artist in conceptualizing, directing, and curating the AI's output, while arguments for AI authorship may focus on the autonomous and generative capabilities of the AI system
  • The resolution of authorship disputes may depend on factors such as the specific AI technology used, the level of human input and control, and the applicable legal frameworks and precedents

Joint authorship with AI

  • In some cases, the creation of AI-generated art may involve significant contributions from both the human artist and the AI system, raising the possibility of joint authorship
  • Joint authorship would imply that both the human and the AI (or its developer) have a shared ownership stake in the resulting artwork and can exercise certain rights and responsibilities
  • The legal recognition of joint authorship between humans and AI is still a developing area, and it may require the adaptation of existing copyright laws and the establishment of new legal precedents and guidelines

AI and creative commons

  • (CC) is a nonprofit organization that provides a set of free, easy-to-use copyright licenses that allow creators to specify how their works can be used, shared, and remixed by others
  • The application of Creative Commons licenses to AI-generated art is an emerging area of interest, as it can provide a flexible and standardized way to manage the rights and permissions associated with these works

Types of CC licenses

  • Creative Commons offers six main license types, ranging from the most permissive (CC0, or "no rights reserved") to the most restrictive (CC BY-NC-ND, or "Attribution-NonCommercial-NoDerivatives")
  • The licenses vary in terms of the requirements for attribution, commercial use, and the creation of derivative works, allowing creators to choose the level of control they want to retain over their AI-generated art
  • Examples of CC licenses include CC BY (Attribution), which allows others to distribute, remix, and build upon the work as long as they credit the original creator, and CC BY-SA (Attribution-ShareAlike), which additionally requires that any derivative works be licensed under the same terms

Compatibility with AI art

  • The use of Creative Commons licenses for AI-generated art raises questions about the compatibility of these licenses with the unique characteristics of AI creativity
  • Some CC licenses may be more suitable for AI-generated art than others, depending on factors such as the desired level of attribution, the potential for commercial use, and the openness to derivative works
  • As AI-generated art becomes more common, there may be a need for the development of new CC license variants or guidelines that specifically address the needs and challenges of this emerging field

Moral rights and AI

  • Moral rights are a set of non- that protect the personal and reputational interests of creators, such as the right of attribution and the right of integrity
  • The application of moral rights to AI-generated art is a complex issue, as it requires considering the extent to which AI systems can be regarded as having personal or reputational interests that merit protection

Right of attribution

  • The right of attribution, also known as the right of paternity, ensures that creators are recognized and credited for their works
  • In the context of AI-generated art, the right of attribution may involve acknowledging the role of the human artist, the AI system, and/or the AI developers in the creation process
  • The attribution of AI-generated art may require the development of new standards and practices that reflect the unique collaborative nature of human-AI creativity

Right of integrity

  • The right of integrity protects a work from any distortion, modification, or mutilation that would be prejudicial to the creator's honor or reputation
  • The application of the right of integrity to AI-generated art raises questions about the extent to which AI systems can be considered to have an honor or reputation that can be harmed by alterations to their creations
  • As AI-generated art becomes more autonomous and less dependent on human input, the notion of integrity may need to be reexamined and adapted to the specific characteristics and capabilities of AI creativity
  • As AI systems become more advanced and capable of generating art that resembles human-created works, the risk of by AI increases
  • Copyright infringement by AI can occur in various forms, such as the unauthorized use of copyrighted data for training, the generation of works that are substantially similar to existing copyrighted works, or the creation of derivative works without permission

Unauthorized use of data

  • AI systems that are trained on copyrighted data without permission may be infringing on the rights of the copyright owners
  • The unauthorized use of data can include scraping copyrighted images, text, or other media from the internet or other sources to create training datasets for AI art models
  • The legal implications of using copyrighted data for AI training are still being explored, and they may depend on factors such as the purpose and character of the use, the amount and substantiality of the data used, and the potential impact on the market for the original works

Substantial similarity test

  • The substantial similarity test is a legal standard used to determine whether a work infringes on the copyright of another work by being substantially similar in terms of protected expression
  • In the context of AI-generated art, the substantial similarity test may be used to assess whether an AI-created work is too similar to an existing copyrighted work, even if the AI was not explicitly trained on that specific work
  • The application of the substantial similarity test to AI-generated art may require the development of new legal frameworks and guidelines that take into account the unique characteristics of AI creativity, such as the ability to generate works based on learned patterns and styles
  • As AI-generated art becomes a global phenomenon, the development and harmonization of international copyright laws and treaties that address the specific challenges of AI creativity become increasingly important
  • International AI copyright law aims to provide a consistent and fair framework for the protection and regulation of AI-generated art across different countries and jurisdictions

Berne Convention and AI

  • The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that establishes minimum standards for copyright protection and ensures that works created in one member country are protected in all other member countries
  • The application of the Berne Convention to AI-generated art raises questions about the eligibility of AI-created works for copyright protection, the determination of authorship and ownership, and the recognition of moral rights
  • As AI technology advances and becomes more ubiquitous, there may be a need for the adaptation or extension of the Berne Convention to address the specific challenges and opportunities presented by AI-generated art

Differences by country

  • Despite the existence of international copyright agreements, there can still be significant differences in how individual countries approach the regulation and protection of AI-generated art
  • Some countries may have more permissive or restrictive policies towards AI creativity, reflecting their unique legal traditions, cultural values, and economic priorities
  • Examples of country-specific approaches include the United States' , which provides a flexible framework for the use of copyrighted material, and the European Union's recent efforts to create a harmonized framework for the regulation of AI, including its impact on copyright and intellectual property

Future of AI copyrights

  • As AI technology continues to advance and become more integrated into the art world, the future of AI copyrights is likely to be shaped by a combination of legal, technological, and societal factors
  • The development of new legal frameworks, the emergence of new AI capabilities, and the changing attitudes and practices of artists, audiences, and industries will all play a role in determining the trajectory of AI copyrights
  • The rapid evolution of AI technology may necessitate the adaptation or creation of new legal frameworks to address the unique challenges and opportunities presented by AI-generated art
  • Potential legal changes could include the clarification of authorship and ownership rules for AI-created works, the development of new licensing models and revenue-sharing arrangements, and the establishment of standards for the attribution and integrity of AI-generated art
  • Legal changes may also involve the harmonization of national and international copyright laws to provide a more consistent and predictable environment for the creation, distribution, and protection of AI-generated art

Impact on art industry

  • The increasing use of AI in the creation of art is likely to have significant impacts on the art industry, from the roles and practices of individual artists to the structure and dynamics of art markets and institutions
  • AI may enable the creation of new forms of art, such as generative and interactive works, that challenge traditional notions of authorship, originality, and value
  • The use of AI in art may also disrupt existing business models and value chains, as the costs and benefits of creation, distribution, and consumption are redistributed among artists, AI developers, platforms, and audiences
  • As AI-generated art becomes more prevalent and sophisticated, there may be a need for the art industry to adapt its practices and standards to accommodate the unique characteristics and implications of this emerging field, such as the development of new metrics for assessing the quality and value of AI-created works, and the establishment of ethical guidelines for the use of AI in art

Key Terms to Review (18)

Aaron Swartz: Aaron Swartz was a prominent American computer programmer, entrepreneur, and internet activist known for his work in developing web applications and advocating for open access to information. He played a pivotal role in the development of RSS, Creative Commons, and the Reddit platform. His actions around the concept of copyright and ownership sparked widespread discussions about information accessibility and the ethics surrounding digital content distribution.
Ai-generated works: AI-generated works refer to creative outputs produced by artificial intelligence systems, which can include art, music, literature, and other forms of expression. These works raise important questions about authorship and ownership, as traditional copyright laws were developed with human creators in mind, leading to complexities regarding who holds the rights to these creations and how they should be protected legally.
Authorship dispute: An authorship dispute arises when there is a disagreement over who created a particular work, often involving questions of intellectual property and creative rights. These disputes can occur in various fields such as literature, visual arts, and music, where multiple parties may claim credit for the creation of a single piece. Such conflicts can significantly impact copyright ownership, licensing, and the recognition of artistic contributions.
Automated creativity: Automated creativity refers to the process in which artificial intelligence systems generate original content or ideas, often mimicking or extending human creative processes. This concept raises questions about authorship, originality, and the value of human versus machine-generated work, particularly in fields like art, music, and literature. As technology advances, the role of automated creativity becomes increasingly relevant in discussions about copyright and ownership.
Blockchain for copyright: Blockchain for copyright refers to the use of blockchain technology to secure and manage copyright ownership and related rights in digital works. This innovative approach provides a transparent, tamper-proof record of ownership and usage, making it easier for creators to prove their rights and receive compensation. By leveraging the decentralized nature of blockchain, artists and creators can gain more control over their intellectual property while reducing the potential for infringement and unauthorized use.
Copyright Act: The Copyright Act is a law that provides protection for original works of authorship, including literature, music, and visual art. It grants creators exclusive rights to reproduce, distribute, perform, and display their work, allowing them to control how their creations are used and ensuring they receive credit and compensation. This act is crucial for understanding ownership issues in the creative fields and how it impacts artists and their intellectual property.
Copyright infringement: Copyright infringement occurs when someone uses a work that is protected by copyright without permission from the copyright owner. This can include reproducing, distributing, or displaying copyrighted materials in any form without authorization, and it raises important questions about ownership, attribution, and the rights of creators. Understanding copyright infringement is crucial in discussions about authorship, the legal rights associated with ownership, and the implications for privacy and data protection in digital contexts.
Creative Commons: Creative Commons is a nonprofit organization that provides free legal tools to enable creators to share their work legally and encourage collaboration. By offering various licenses, Creative Commons helps to define how a piece of work can be used by others while still protecting the creator's rights. This framework promotes the sharing and remixing of creative content, making it an essential part of the conversation around copyright and ownership in the digital age.
Digital Millennium Copyright Act: The Digital Millennium Copyright Act (DMCA) is a United States copyright law that was enacted in 1998 to address the challenges of copyright protection in the digital age. It updates copyright law to include protections for digital content and establishes rules for online service providers regarding copyright infringement. The DMCA also provides a framework for addressing unauthorized distribution of copyrighted material, making it essential for artists and creators to understand their rights and the ownership of their work in the digital landscape.
Digital Rights Management: Digital Rights Management (DRM) refers to a set of access control technologies used to protect copyrighted material and ensure that creators retain ownership and control over their digital works. This technology limits how users can access, use, or distribute digital content, helping to combat piracy and unauthorized sharing. By enforcing restrictions on the use of digital media, DRM connects deeply with issues surrounding copyright and ownership, highlighting the balance between protecting creators' rights and allowing consumers fair use.
Economic rights: Economic rights refer to the rights that allow creators to control the use and distribution of their original works, enabling them to benefit financially from their creations. These rights are a critical component of copyright law, granting authors and artists the authority to reproduce, distribute, and display their works, as well as to license others to do so. Understanding economic rights is essential for navigating the complexities of ownership in creative industries, where the balance between access and compensation is often contested.
Ethical use of ai: The ethical use of AI refers to the responsible and fair implementation of artificial intelligence technologies, ensuring that they are designed and utilized in ways that respect human rights, promote fairness, and avoid harm. This concept is closely linked to issues like accountability, transparency, and the protection of intellectual property, as well as the rights of creators and consumers in the digital landscape.
Fair use doctrine: The fair use doctrine is a legal principle that allows limited use of copyrighted material without obtaining permission from the copyright holder. This doctrine serves as a balance between the rights of creators and the public's interest in the free flow of information, enabling uses such as criticism, comment, news reporting, teaching, scholarship, or research. It helps to define the boundaries of authorship and attribution while addressing issues related to copyright and ownership.
Intellectual Property: Intellectual property (IP) refers to the legal rights that protect creations of the mind, such as inventions, literary and artistic works, symbols, names, and images used in commerce. IP is crucial in various fields as it ensures creators can control and benefit from their work while also fostering innovation and creativity.
Lawrence Lessig: Lawrence Lessig is an influential American legal scholar, professor, and political activist known for his work on copyright, internet law, and the impact of technology on society. He emphasizes the need for a balance between copyright protection and the public's access to cultural works, advocating for reform in the way laws govern digital media and intellectual property.
Moral rights: Moral rights are a set of legal rights that protect the personal and reputational interests of creators in their works, regardless of who owns the copyright. These rights allow creators to assert their connection to their work and prevent unauthorized alterations or misattributions that could harm their reputation. Moral rights are distinct from economic rights, which focus on the financial aspects of copyright ownership.
Post-human authorship: Post-human authorship refers to the concept of creative works produced or significantly influenced by non-human agents, such as artificial intelligence, algorithms, or other forms of technology. This challenges traditional notions of authorship and ownership, as the creator may not be a human being, raising questions about copyright, originality, and the rights associated with these works.
Transparency in ai creation: Transparency in AI creation refers to the clarity and openness regarding how artificial intelligence systems are developed, operated, and make decisions. This concept emphasizes the importance of understanding the algorithms, data sources, and processes that underpin AI technologies, ensuring stakeholders can comprehend and trust these systems. By fostering transparency, creators aim to address ethical concerns, accountability, and copyright issues surrounding AI-generated content.
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