back to article AI-generated art can be copyrighted, say US officials – with a catch

The US Copyright Office will consider an AI-generated work copyrightable if a human can prove they themselves put a meaningful amount of creative effort into the final content, according to a policy published on Thursday. AI software capable of automatically generating images or text from an input prompt or instruction has …

  1. Anonymous Coward
    Anonymous Coward

    Realistically this is less of an issue than people make out...

    The Mona Lisa is out of Copyright. If I take a photo of the Mona Lisa, I hold the Copyright on that photo. The barrier for something to be copyrightable is very low. Even picking your favourite AI generated image from a choice of 5 probably is enough for there to be "human creativity" of some kind.

    Interestingly, this is the problem that the website that "generated every possible sequence of musical notes" ran into. No creativity, so no copyright ownership...

    In any case, until an AI produces Mickey Mouse, there probably won't be issues. Copyright is often an "in hindsight" legal question.

    1. Ian 55

      Re: Realistically this is less of an issue than people make out...

      "If I take a photo of the Mona Lisa, I hold the Copyright on that photo."

      It depends. Specifically, it depends on where you are and what else is in the photo.

      If you just take a picture of the Mona Lisa on the wall, plenty of places will not think there is enough creative input to create a new copyright work.

      Galleries selling reproductions of works in their collection would obviously prefer it were otherwise, but they haven't been rich enough to get the laws in countries like this changed.

      1. Grogan Bronze badge

        Re: Realistically this is less of an issue than people make out...

        Yet, bleeding heart animal huggers in the United States managed to sue to get copyright awarded to an ape named Naruto, because it picked up a photographer's camera and clicked it, and a funny facial expression was the result. The photographer lost rights to the photo, and had to surrender all royalties past and present, from the photo. The funding of course went to the animal rights lobby group that brought the suit. That's so corrupt it makes me very angry, and I'm not a photographer and have no stake in any copyright of anything. I do expect fairness though.

        OK then, if a monkey can own copyright, it can also be charged for stealing a camera, no? Copyright is ridiculous... and they want people to respect it. It all boils down to the whims of judges.

    2. hammarbtyp

      Re: Realistically this is less of an issue than people make out...

      Copyright generally has a "sweat of the brow" clause. Basically it is saying that there has to be a not insignificant effort put in for the work to be copyrighted. For example googling and copying a Wikipedia page on the American revolution would fall under that bar, while if you used the work as part of a larger work, then it would. I am guessing the AI clause would come under that

      However as usual most of these things will need to be tested in court first and of course US copyright law does not apply to the rest of the world. It is also another example of how a 19th century concept based on the need to stop print media being copied is struggling in the face of new realities.

      One of the major issues is to prove how much was your work and how much was the A.I. The fact that copyright is given automatically on creation will make this difficult to enforce.

      There is a bigger copyright question. If an image or piece of work is created based on a model trained 100's or Millions of others work, how much copyright protection and credit should the creators of the original work get? Can original work be excluded from the model by the copyright holder? Does existing copyright law provide any protection in its use in AI models?

      Answers on a AI generated post card please...

      1. cyberdemon Silver badge

        It may be copyrightable

        But "Is it Art"?

        1. Ideasource Bronze badge

          Re: It may be copyrightable

          Functionally anything is art if it is perceived to be by the beholder.

          Art is a subjective experience perceptionally inverted to be seen as if a property of an external object.

        2. TheMaskedMan Silver badge

          Re: It may be copyrightable

          "But "Is it Art"?"

          Bigger question: Does it Matter?

          If it looks ok, fits in the space on my wall / page / website etc, It Will Do:)

          I suspect that if you took a random selection of Midjourney images, mixed them up with an equal number of randomly selected meatsack generated images and then asked the man on the Clapham omnibus which ones were art, he'd probably say all of them, subject to his personal preferences.

          Which rather messes up the notion that art embodies some nebulous concept of human expression. Rather, something is art if the viewer thinks it is, regardless of how it was produced.

      2. Doctor Syntax Silver badge

        Re: Realistically this is less of an issue than people make out...

        Obviously some actual work will have to be done to touch out the Getty and Alamy watermarks (other watermarks are available).

    3. Snowy Silver badge

      Re: Realistically this is less of an issue than people make out...

      The earliest version of Mickey Mouse is also out of copyright.

      1. John Brown (no body) Silver badge

        Re: Realistically this is less of an issue than people make out...

        Is it? Or is that Steamboat Willy? Not technically Micky Mouse, although the House of Mouse probably hate that situation.

        1. Youngone Silver badge

          Re: Realistically this is less of an issue than people make out...

          When Disney get around to purchasing new copyright laws, that'll change. Then the rest of the world will be pressured to adopt whatever it is that Disney want so that the laws are "harmonised".

          They've been doing it since the 1990's.

          1. Francis Boyle Silver badge

            I find that

            hard to believe.

  2. b0llchit Silver badge

    Who will get what

    ...a meaningful amount of creative effort...

    That is a very diffuse standard. And then:

    ...poems, and books generated using ...[AI tools]... will not be protected by copyright if they were created by humans using only a text description or prompt.

    The poems statement will be a very difficult one. It is quite easy to generate a multitude of "poems" using automation. But, because they are generally very short, they can be generated quite efficiently. (Soon) You cannot effectively distinguish the work of an artist writer and a generated text any more. The new standard thus means that no poems will be eligible for protection. Otherwise you need to have proof of human creation, which is quite a hard thing to do. The new setting is undermining the whole copyright regime and status quo.

    The real elephant in the room is Disney and the like. When they start to make films with AI, then they will surely get copyright protection. A corporation is not a human and still gets protection. They will ensure that they will get an infinite copyright term on this kind of produce because, well, they have the money and lobby to write their own rules and laws. And this time, they will probably ensure that only the BigBoysClub will be eligible for this kind of protection.

    1. Anonymous Coward
      Anonymous Coward

      Re: a meaningful amount of creative effort

      I want to see how they're going to define 'meaningful', that is at which precise point, 'meaning-less' becomes 'meaning-ful'. Is it going to be defined by a grumpy judge on Monday morning, or a happy judge on Friday afternoon? Or perhaps, both will have been, by then, optimised out (think of the children, but even more so, think of the savings!) - and replaced with gpt-ish judge to make a just judgement in a split of a second. And think how much time you'll save, once you've logged your appeal, it will be processed and rejected in another split second. What's not to like.

      1. Doctor Syntax Silver badge

        Re: a meaningful amount of creative effort

        Judge? Won't all these be going to go before Texas juries?

  3. An_Old_Dog Silver badge

    Copyright-Worthy Human Element

    "Sure, the AI created the initial image using my responses to its prompts, but then I Photoshopped it and used the Warp tool to enlarge her breasts. I did that! Oh, and I changed her bra from red to pink. That was my work, too!"

    You know someone will try something like this.

    1. Ian 55

      Re: Copyright-Worthy Human Element

      It would help if they had the 'before' version as well, of course.

      1. John Brown (no body) Silver badge

        Re: Copyright-Worthy Human Element

        There is "art" out there in galleries, presumably copyrighted, that is little more than a simple geometric shape in some single colour or other on an otherwise white canvas. The only real work that went into something like that is the bullshit generated in the "artists" head when describing why it's so wonderful and meaningful. Or that gut that used to get small passenger jets and set up a canvas behind them and throw tins of paint into the jet stream to "create art". I doubt he could plan where the paint went, only the order in which he threw the colours.

  4. Bartholomew Bronze badge

    Eventually you will end up with a situation where

    An Neural Network is trained on Neural Network generated images, text, audio and video. Because it will be far too expensive to use human to generate the same amount of content in the similar length of time. And at that stage it will defiantly be a case of garbage in garbage out.

    1. Version 1.0 Silver badge

      Re: Eventually you will end up with a situation where

      "Father, forgive them; for they know not what they do" - the author said this when he was being nailed on the cross by AI (Antichristian Idiots).

  5. localzuk Silver badge

    Other issue

    Isn't the other issue with AI art that it uses elements of imagery from its training dataset? So, technically it is often itself copyright infringement? Being inspired by someone else's work is fine, but actually taking the data from that image and using it to generate a new image? That seems like future lawsuit material to me.

    1. Richard 12 Silver badge

      Re: Other issue

      Current lawsuit material.

      There's already multiple in-progress.


      Re: Other issue

      Aren't there computers scanning images available on the public internet for such copyright infringements 24/7? Someone I know received an automatic lawsuit for an image her website designer used when constructing the Wordpress site for her small business, she eventually settled out of court for about 2k. In her case, an entire unmodified copyrighted image was used illegally.

      1. GruntyMcPugh Silver badge

        Re: Other issue

        This happened to someone I work with. A local councillor had created some presentation about urban regeneration, and used some images they got from a stock image place. The presentation got uploaded as meeting minutes, the site got crawled, and then they were looking at a copyright infringement and had to cough up some cash.

    3. veti Silver badge

      Re: Other issue

      I have to say, I've never understood that argument. Nobody says that about humans writing text, even though we demonstrably and consistently "borrow" phrases and constructions from each other all the time. Why should a computer be forbidden to do something that we all do daily?

      1. localzuk Silver badge

        Re: Other issue

        Except, we do say that about writing text? There's been many, many cases about textual copyright infringement.

        1. veti Silver badge

          Re: Other issue

          Only if you copy great paragraphs of the stuff wholesale. Nobody claims words and phrases are copyright protected. The exact amount you have to copy to get in trouble is - not very well defined, but I never heard of anyone suing over even a whole sentence.

          (Except when the target was insanely rich and high profile, and the suit was basically about publicity for the more obscure plaintiff. Legally such suits are non starters, but who cares if it means millions more people have now heard of you?)

          Take the word "badass", for instance. Sometime during my lifetime, someone somewhere coined that word. Now it's common currency, but nobody ever even attributes it, much less talks about royalties.

          1. localzuk Silver badge

            Re: Other issue

            That's because individual words and short phrases are not copyrightable, as the work involved in creating them is not substantial enough.

            Whereas, an image? That creates significant effort to create. So, extracting parts of it is extracting parts of that significant work.

  6. Groo The Wanderer

    Seems reasonable; only the HUMAN-generated aspects are copyrightable.

    That is going to get interesting when it comes to humans "tweaking" AI-generated code, or merely approving it as valid. If they don't have to touch it, it isn't copyrightable. That is going to throw a major wrench into a lot of software license terms and applicability.

  7. Anonymous Coward
    Anonymous Coward

    When push comes to shove

    People will just deny any involvement of AI. In fact, for those creators who want copyright protection, it may be in their best interests to never admit to AI involvement.

    Then the onus will be on the accuser.

    Good luck proving that negative.

    1. GruntyMcPugh Silver badge

      Re: When push comes to shove

      I guess the issue would be Stable Diffusion wanting credit / royalties for art their product created on behalf of the requestor, should the art prove to be lucrative. Although AI art might be poised to kill the poster market, why have something on your wall that's a copy, when you can have your own bespoke creation? I'm kind of surprised Stable Diffusion doesn't have a click through to order a physical copy.

  8. JoeCool Bronze badge

    Lawyers in love

    I predict a tidal wave of legal work. Applying for a copyright is meaningless, unless you can enforce it, and commericalize the work.

    Defining applied legal tests will be by lawsuits ( define "meaningful change". lol ). Enforcement will be through lawsuits.

    Consider this "simple" distillation:

    "The initial image created using AI would not be copyrightable, but the final product produced by the artist might be."

    Is it enough to take a pdf of the original image, or do you need the user inputs to the AI ?

    Are those inputs of any use without a copy of the AI that produces the image ?

    Does that AI produce repeatable results ?

    This kind of Copyright fight will be won by the wealthiest content creators. Seems to be crossong line to an anti-democratic society.

    1. Anonymous Coward
      Anonymous Coward

      Re: Lawyers in love

      The lawyers and the rich win then - the plan is right on track.

      Democracy is of little interest to those groups of people.

  9. spold Silver badge


    ..if I get a small child with some crayons to colour bits in that should do nicely.

    1. Paul Hovnanian Silver badge

      Re: So...

      I remember "paint by numbers".

  10. JRVLaw

    Courts have already grappled with this question. At least in New York, Torah Soft Ltd. v. Drosnin, 136 F. Supp. 2d 276, 280, 281, 282 (S.D.N.Y. 2001).“It is fair to say that users of such programs often supply the lion's share of the creativity to create the screen display. By contrast, an end user of the Software merely inputs a word or phrase which the Software searches for in the Database. Thus, the Software does the lion's share of the work." The majority of the work that is human expression/ creativity is the deciding factor in copyrightability.

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