One of the biggest questions surrounding AI-generated images seems closer to having a final answer, as the US Copyright Office (USCO) released a new guidance that establishes that AI-generated pictures cannot be copyrighted.
This directive –which also applies to AI-generated text, music, and any other creative production done with AI-generative models– is based on the USCO’s consideration that it’s the machine(s) and not the human who is responsible for the creative process, and only human-made creative works can be subject to copyright.
However, the Office has left the door open to registering AI productions as long as the piece has enough human intervention.
Let’s analyze what this all means.
The new guidance published by the USCO rests on the concept that has ruled over copyright registration so far. Which is that only productions that are the result of the creative, original conception and execution of a person can be copyrighted. The entity has said in no uncertain terms they are still going by this rule.
This policy cancels any possibility of copyrighting visual art made with non-human, AI generative models.
But there is more.
An important affirmation the Copyright authority in the US has made at this time refers to text-to-image generators (but it applies to all generative models that use text prompts as input). The Office established that while written by humans, text prompts do not constitute enough creative input to be copyrightable.
They compared text prompts to commissioning a photographer or artist, where the client gives direction, but it’s the hired artist applying their creative vision and skill to produce the art.
According to their communication, they understand that current AI-generative models do not give humans a way to exert control over the generation part of the process. This rules out copyright as a possibility for the images they generate.
Basically, the pictures’ authorship belongs to the machine, not the user, and machines cannot copyright work.
Not all is lost for AI-generated photos, as the US Copyright Office still leaves a door open for registering work originally made by AI or pieces where AI tools were involved in the process.
Again, it all goes back to how heavy human intervention is in creating the image. If the person can prove to have a good amount of control and influence in the final work, then said work could be considered their original creation and, thus, subject to copyright in their name.
This means that artists could potentially use AI tools to generate a base picture and then edit it in “traditional” ways to make it their own, for example. Certainly good news for those intending to sell or buy AI-generated content for commercial use (such as stock photo agencies and contributors).
However, at this time, there are no defined standards for what constitutes enough human intervention in an AI-generated image. For this reason, the organism will examine copyright applications of AI content on a case-by-case basis, considering both the mechanisms of the AI tools used and the amount and type of human intervention in it.
As a side note, we need to mention that the new policy has not formally addressed the growing concern over how AI-generative models are trained with the copyrighted work of human artists and whether the images they synthesize could be considered copyright infringement.
It so seems that, as far as copyright goes, machines will not take over humans any time soon. What is even more important, we are now a lot closer to defining a legal frame for the newly born AI-generated content that continues to flood all creative industries.
What do you think about the USCO’s latest guidance about the copyright of AI imagery? We’d love to know your thoughts!
And if you want to learn more about the current state of this novel industry, don't miss our visual AI stats report!
I am an experienced author with expertise in digital communication, stock media, design, and creative tools. I have closely followed and reported on AI developments in this field since its early days. I have gained valuable industry insight through my work with leading digital media professionals since 2014.
AI Secrets is a platform for tech decision-makers to learn about AI technology. Our team includes experts such as Amos Struck (20+ yrs ICT, Stock Photo, AI), Ivanna Attie (expert in digital comms, design, stock media), and more who share their views on AI.
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