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Art by Artificial Intelligence: Public Domain or Infringements on the Copyrights of Human Artists?

Published onMar 15, 2023
Art by Artificial Intelligence: Public Domain or Infringements on the Copyrights of Human Artists?

In past months, artificial intelligence (AI) has raced to the forefront of the media and news with the creation of advanced artificial intelligence systems that can do your homework, write your essays, and even create art. AI systems like DALLE, Lensa AI, and Midjourney are all capable of rendering artwork based off prompts given to them by their users. The problem affecting artists today lies in how these AI engines produce their artwork. Artists argue that the work created by the engines are infringements on their intellectual property rights because many of the systems use their copyrighted artwork as inputs.

 Pushing back, artists across America are urging individuals to create and sell clothing and merchandise using Disney-inspired images created by AI. By doing so, artists hope to push Disney, a historically fierce defender of their copyrighted images, into litigating this issue and answering their question: Is AI art that uses copyrighted images public domain, or subject to the same copyright laws as anything else?

 Currently, the legal consensus is that AI art is public domain and therefore not subject to copyright laws. Under the Copyright Act, artwork eligible for protection (1) must be an original work of authorship; (2) must be fixed in a tangible medium; (3) and must have a minimum amount of creativity. In 2022, the United States Copyright Office (USCO) took up the question of whether AI-generated artwork could be copyrighted. The petitioner, Steven Thaler, first brought an image created by his “Creativity Machine” algorithm to the USCO in 2018. In both 2019 and 2022, the USCO board determined that copyright law protects only the “fruits of intellectual labor… founded in the creative powers of the human mind.” They found that the requirement of “original works of authorship” is a broad term but one that has been limited by the Supreme Court to creations by human authors.

But what about the legality of using copyright-protected art to train AI systems? Most AI systems are taught with content taken off the internet and gather input from a variety of platforms. Original, copyright-protected works by artists are very likely used in these systems to create art that mimics them to some degree. AI startups and technology companies justify this use under the idea that their practices are protected by the fair use doctrine. While there are a number of considerations to take into account when determining whether an activity is protected by the fair use doctrine, two factors are prominent: the purpose or nature of the use and the impact on the market. Stated another way, the factors assess whether the use changes the nature of the source material in a transformative way and whether the use threatens the livelihood of the original creator by competing with their works.

Artists today would argue that the use of their copyrighted material without their knowledge or consent does not constitute fair use. AI systems can easily recreate styles and ideas artists have spent their careers developing. Accordingly, artists have been vocal about the threat to their livelihoods posed by AI-created art and have filed a class action lawsuit against AI systems Stability AI, Midjourney, and Deviantart. The success of this litigation will depend on the court’s receptiveness to their argument that AI art violates the fair use doctrine.

Employing a variety of different approaches, artists are using their collective voice to push back against what they feel is a violation of their intellectual property rights. They have taken to social media to urge consumers not to use these AI systems and are considering removing their artwork from the internet so that it is safe from use by AI. Their efforts in creating and selling Disney-inspired AI art have yet to urge Disney into litigation and the class action suit is still in early stages of litigation having been filed in January 2023. While there has yet to be any solid resolution to this issue, the palpable outrage of artists has placed much-needed attention on the importance of the law addressing how to balance the intellectual property rights of artists against the expanding capabilities of modern AI.

Nathalie Rodriguez Mueses is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Political Science from San Diego State University, where she graduated magna cum laude. Upon graduation, she intends to pursue a career in entertainment law.

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