What You Need to Know About AI and Copyright Law

AI and U.S. copyright law are like your Facebook relationship status from 2011 — it’s complicated. For now, works created with generative AI cannot be copyrighted. Things created partially by AI can have a copyright, but only for the part the AI didn’t create. But as humans and machines continue working together the lines will get blurrier, making copyright law even messier.

There are also concerns over copyrighted material being used to train AI. It’s allowed for now, but it could also become more complicated as our use of AI continues to evolve.

How Generative AI Works

Generative AI tools like Midjourney and ChatGPT create images or texts based on prompts you give them. For a text-to-image tool, the prompt could be something like, “computer hacker in pixar movie style.” AI will spit out images for you to choose from. 

For a generative text tool, you could ask for “a short essay about why cyber security is important” and it would write the essay for you. AI is able to create these images and texts using machine learning. It looks at millions of other images and texts — that were created by humans, mostly — and uses them to produce “original” works.

If the results you get from a generative AI tool are just culminations of other people’s work, does that make them original?

Is AI protected by copyright?

In the U.S., works created with AI tools are not protected by copyright. The U.S. Copyright Office issued a decision in March, 2023 clarifying that works created using artificial intelligence are not eligible for copyright, even if they were created using prompts written by a human.

Does that mean that if you use AI at all in your creation that it can’t be copyrighted? Not exactly. You can still copyright your work, but only the portions of it that were created without AI.

The Case of Zarya of the Dawn

This stance from the U.S. Copyright Office came out of a case involving a comic book that included illustrations created by generative AI tool Midjourney. The author of the graphic novel Zarya of the Dawn, Kristina Kashtanova, was originally granted a full copyright for the work in September 2022.

However, it was rescinded when the Copyright Office learned that Kashtanova used AI for the illustrations. She still has a copyright over the text in the novel, since she wrote that herself.

It boils down to this: if a human didn’t create something, it can’t be protected by copyright.

Who owns the copyright for works created by artificial intelligence?

Nobody owns the copyright for works created by AI. The U.S. Copyright Office has made it clear that works created by AI fail the human authorship requirement. The same idea applies to animals who have managed to take photographs in the past — those photos can’t be copyrighted either.

Is it illegal to sell AI-generated art?

You could reasonably say, therefore, that a work created with artificial intelligence is free to use as you wish. Does that mean you can sell images or texts made with AI? In most cases, yes. As long as the user agreement of the AI tool you’re using permits it, you can sell AI-generated art.

Are AI-generated images copyright free?

Images created with AI do not carry a copyright — which is good news and bad news. It’s good if you’re looking for a sort-of customized image for a blog post, email, social media post, or similar project. It’s not good if you’re a creator whose work is used to train the AI, and the AI becomes capable of producing work strikingly similar to yours.

Can AI use copyrighted works?

Generative AI tools are able to produce “original”  works by training on works actually created by humans. The AI can produce an image in the style of Andy Warhol because it studied the actual works of Andy Warhol. AI is allowed to train on copyrighted material as well, due to certain fair use laws.

If AI is using copyrighted material to create images, texts, or other works that very closely resemble the human-made original, is that stealing?

Legally, no. However, some artists and creators are arguing that it is. A lawsuit by Getty Images against Stability AI states that their generative AI tool Stable Diffusion copied and processed millions of copyright-protected images from Getty — without getting permission or offering compensation.

Another class action lawsuit from three artists claims copyright infringement by Stability AI and Midjourney. The artists claim their work was unlawfully used to train the AI, and the AI can now create works that compete with their own.

For now, AI tools can still train on copyrighted materials. But that may change in the near future.

Deciding Who Has Rights in the Future of AI

It didn’t take long for conversations about copyright and ownership to pop up after the explosion of generative AI tools. Whether or not you agree with the stance the U.S. Copyright Office has taken on the matter, you should know how ownership of creative works if you’re planning to use AI for your own creations.

If you are a creator, you should also keep a close eye on this space and watch how it develops. As the way we use AI continues to evolve, so will our rules and laws about copyright.