Art is a form of expression that has been around since the beginning of human history. It captures our emotions and conveys ideas in a visually powerful way. With the rise of technology, Artificial Intelligence (AI) has become an increasingly popular tool for creating art and generating new, never-before-seen images that have been amazing non artists and infuriating traditional artists as well as digital artists who feel as though their art is being stolen. But who owns AI generated art? Is it Fair Use and can it be Copyrighted? Let’s explore these further.
Note: All AI generated art in this blog post were generated using https://creator.nightcafe.studio/. Hopefully none of the art here was stolen. If these artworks have any resemblance to actual persons, living or dead, or actual events is purely coincidental.
Who owns AI generated art?
According to copyright laws, the creator of an art work is typically considered its owner, which could apply in cases where AI artwork has been created with direct input from a human artist. However, when it comes to purely AI-generated works, things become a bit more complicated.
When AI art is created by a machine, who owns the rights to the artwork? It’s not always clear who has legal ownership of an AI-generated work since it’s difficult to determine which parts were generated by human input and which came from the machine itself. There are no definitive answers yet as this area of law is still developing.
In the US, the Copyright Office generally rejects copyright protection for works that are “directed by natural forces” or have been “created by mechanical processes without any creative input” from humans. This means that pure AI-generated works might not be protected under copyright laws in certain countries, such as the US. However, some experts argue that if the AI-generated work is based on an existing artistic style or incorporates the vision of a specific artist, it could potentially be protected by copyright.
If art is created by humans and AI generated art is using existing images to mash up new art, then who owns AI generated art?
AI generated art is created by computer algorithms powered by artificial intelligence which generate artwork with (via a summary of instructions – an artistic brief such as “make an image of heaven with goats next to a mountain”) or without direct input from humans.
This type of art is often inspired by traditional forms such as painting or photography but can also be completely novel and abstract. AI works by learning from data sets to create something entirely new, meaning it’s difficult to predict what the output will be before it’s created.
Sadly, for most artists, the data sets it learns from are based on real art created by artists and uploaded online. The more descriptive and popular an artwork is, the more likely it will be used by the AI to meet its ‘artistic brief’.
The question of who owns AI generated art is complex and has yet to find a definitive answer. AI-generated art is not considered copyrightable because it does not meet the criteria for original works of authorship under US Copyright Law. According to the law, an author must be a human who has created something from their own creative effort or intellect. Since AI programs are programmed with instructions and algorithms written by humans, they cannot technically qualify as authors in their own right.
Does AI Generated Art Fall Under Fair Use? Is AI Generated Art Transformative?
Many argue that since AI-generated art is transformative, it should be considered as fair use. Fair use is a legal doctrine which permits the public to use copyrighted works for certain purposes without permission from the copyright holder. Transformative works are those which alter or add something new to an existing work and can thus qualify for fair use exemptions.
However, whether or not AI generated art qualifies as transformative is subject to debate. Some believe that this type of artwork does not have enough human input to be considered ‘transformative’ while others argue that the creative choices made by machines during the process should count as adequate input.
Until we end up with a court case and a legal precedent, the law needs to catch up and until there AI generated art is like the wild west and some feel a free-for-all for anyone wanting to use existing images of art to create new ones and bypassing real artists.
However, this does not mean that AI Generated Art is completely free from legal implications. Depending on how the artwork was created, there may still be some ownership rights attached to it. For instance, if someone creates an image using software created by another person or company, then the creator of that software may have some rights to the end product. Additionally, if a person designs an AI program specifically for producing artwork and someone else uses it, then the original designer may still have some ownership rights to any resulting works.
Different countries have their own copyright laws, so who owns AI-generated art may vary from one country to another. In general, though, who owns AI-generated art will depend on who has created or contributed to the creation of that work. For example, if two people work together on a project using an AI program, they both developed, then they will both be considered authors under US Copyright Law and thus potentially entitled to certain rights regarding who can use or distribute the resulting artwork.
I have a keen interest in AI generated art as I have a software engineering background and a keen interest in AI that started back in 2002 when I wanted to create my own AI that could make art for me. My idea was ahead of the tech available at the time and I soon gave up on the idea. After seeing what it is doing to many artists, I am glad I did.
What Is AI Generated Art?
AI-generated art is artwork created using artificial intelligence (AI) algorithms. It can take many forms, from simple drawings to complex animations and videos. In most cases, the AI algorithm takes input data—such as images or video clips—and uses machine learning techniques to create something new and unique (hopefully). The results can look incredibly realistic, or completely abstract; they’re often visually stunning but difficult to replicate manually.
How Is AI Generated Art Made?
The first step in making an AI-generated artwork is collecting data that the algorithm can use. This data can come from many sources, including photographs, videos, 3D models, and sound recordings. It’s then fed into a neural network—a type of AI algorithm—which uses mathematical principles to process the information and create something new.
The neural network is designed to recognize patterns in the input data, so it can take ideas or elements from different sources and combine them into a single artwork. For example, an AI algorithm could take pieces of different paintings and assemble them into a unique image that looks like a mashup of all the components. This technique is known as “style transfer” because it transfers elements from one piece of art to another, while still maintaining its original form.
Technically, AI generated art is created through a process known as Generative Adversarial Networks (GANs). This involves two neural networks – one ‘generator’ and one ‘discriminator’ – competing against each other to generate the most realistic image. The generator network creates an image while the discriminator attempts to determine whether it is real or not. This process is repeated until the generated images are indistinguishable from those produced by humans.
Algorithm-based artworks involve creating an automated program or script that produces images of other artwork from data sources such as photos, videos, texts, audio files and more. The algorithm doesn’t actually ‘see’ the artworks it is stealing from, what it does is use the descriptions, titles and any supporting words that are added when artworks are uploaded online as the basis for its art creation.
The results can often be stunningly creative pieces of art that could never have been created by human hands alone. On the other hand, machine learning works use a computer’s processing power to analyze large sets of data and identify patterns and trends that humans may miss. This can be used to generate unique works of art using a variety of methods, such as creating images from noise or combining the features of two different images.
Ownership of AI Generated Art – Final Thoughts
The ownership of AI-generated art is now being debated extensively in the legal sphere, with many experts arguing that who owns the rights to an AI-generated work should depend on who created it. In this sense, both copyright and patent laws could potentially apply to AI-generated art depending on who was responsible for creating it and how they created it. However, most jurisdictions have yet to establish precedent regarding the legal status of these works.
When it comes to copyright law, there are some who argue that since AI-generated works do not involve a human creator, it is not eligible for copyright protection. This means that the AI-generated art would be considered ‘public domain’ and anyone could reproduce or modify the work without having to pay royalties or seek permission from any person or organization.
On the other hand, some experts believe that who owns an AI-generated work should depend on who created it. For example, if a programmer wrote code that resulted in an AI-generated artwork, then they could potentially have a claim to that work under existing copyright law. Similarly, if a company developed an algorithm specifically to generate images, they might be able to claim rights over any works produced using this algorithm even if there was no direct human input involved in creating the image.
The issue of who owns AI-generated art has come to the fore recently with the emergence of “deep fakes” – deep fakes are computer generated images or videos created using AI mixed with real images or videos that appear realistic but are actually fabricated.
This technology has raised questions over who should be held responsible for deep fakes and who should have control over them. Many experts believe that liability should rest on those who designed, created and/or distributed the content rather than the AI itself.
But when a deep fake uses the image rights of someone famous then that person can ask for payment, so why not an artist who can prove that their art was used?
The legal implications of who owns an AI-generated work will become more important as this form of creation becomes more widespread. In order for copyright law to keep up with the rapidly evolving nature of AI-generated artwork, it is essential that governments and legal bodies consider how existing copyright laws should be amended to protect the rights of creators who use AI technology.
The first question that needs to be answered is whether or not AI-generated art can even be copyrighted. The currently accepted answer to this is yes, but there are still some legal ambiguities around who actually owns the copyright in the image. Generally speaking, if a person creates an artwork using AI then they will likely own the copyright in it – however, if an AI system has been used purely autonomously without any human intervention then who holds the copyright may become tricky as no single individual controls the process.
Another issue when it comes to who owns an AI-generated work is who has control over its distribution and usage? Currently, most publishers and copyright holders require authors to sign a contract that grants them exclusive control over how the work is used and distributed. This means that AI-generated art makers who are not affiliated with any traditional publishers may have difficulty controlling who uses their images and where they appear.
When it comes to who has ownership of an AI-generated work, there are still some grey areas when it comes to who owns the copyright in the image. If a person creates an artwork using AI then they will likely own the copyright in it; however, if an AI system has been used purely autonomously without any human intervention then who holds the copyright may become tricky as no single individual controls the process.
The question of who owns AI generated art is complicated because of the difficulty of who holds the rights to the artwork if the artwork was made using images of another copyrighted artwork?
Generally, copyright law states that the author of an artwork (regardless of whether it is a painting, sculpture or AI generated piece) owns the copyright in it. However, as previously mentioned, if an AI system has been used without any human intervention, then who holds the copyright may become difficult to identify and therefore who owns AI generated art is somewhat open for debate.
A growing number of people are beginning to question who holds the ownership of such works as more and more artists are using AI systems in their work. As such there is a strong argument that ownership could lie with both the artist who created or programmed the AI system and with those who use it; which creates further complexity when determining who owns the copyright in AI generated art.
An interesting side note to who owns AI generated art is that it may not just be the work of the artist who created or programmed the AI system; but also, those who have used and interacted with this system or even shared their data. This can be seen as a kind of collaboration between both human and machine, where ownership could be argued to lie with all parties who contributed to its creation. Should AI art algorithms begin tracking whose artwork it used to generate its art? Should royalties be paid, or attribution forced to be provided?
These are interesting times; we can only wait and see for now. By the way, I am not a lawyer even though I did a semester of law and I have fall foul of it a few times in my life but when it comes to protecting my own rights as an artist I have been hitting the books hard looking for ways to protect my intellectual property if I am ever the victim of an AI tool such as DALL-E or OPEN AI.
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Joseph Colella is a frustrated artist with over 40 years experience making art (who moonlights as a certified Business Analyst with over 20 years of experience in tech). While he holds a Diploma in Information Technology, in true wasted talent style he spent years trying to get into various Art degrees from the Accademia di Belle Arti (Napoli), and failed to get into the Bachelor of Arts (Fine Arts) at the University of Western Sydney. His goal is to attend the Julian Ashton School of Art at The Rocks Sydney when he retires from full time work. In his spare time, he writes for the this blog, WastedTalentInc, where he shares practical advice on art, making art, and art materials. Joseph’s art has been sold to collectors all over the world from the USA, Europe and Australasia. He is a trusted source for reliable art and copyright/fair use advice and is committed to helping his readers make informed decisions about making them a better artist.
He also loves all things watches (ok it’s an addiction) so show him some love and visit his other website https://expertdivewatch.com