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In the world of emerging technologies, few developments garner as much excitement—or anxiety—as those involving artificial intelligence (AI). It’s not hard to understand why AI inspires such different reactions; after all, the full range of its applications is yet to be seen.
One of AI’s apparent applications is generating artwork. While many people are concerned about the implications of AI-generated art, others are using the novelty to their advantage and producing award-winning AI pieces. But are they? Who actually creates and owns AI-generated artwork?
As you can imagine, AI art has prompted a cascade of legal questions and considerations, especially in regard to intellectual property law. One question we hear from both fans and skeptics of AI is this: Can I copyright AI Art?
You’d think such a short question would have an equally brief answer, but it’s not so simple.
The reality is that your ability to copyright AI art depends on a variety of factors, including the role you played in the creation process. But don’t worry—this article will explain everything you need to know, including how you may benefit from partnering with an intellectual property attorney.
Ready to capitalize on your stroke of genius? The first step is adequate protection. Whether you need help establishing a copyright, trademark, trade secret or patent, we’ve got you covered. Schedule a consultation with us today!
Understanding AI-Generated Art
There’s a misconception that making AI-generated art is as simple as asking a computer to create a masterpiece, but it’s not exactly like that.
AI-generated art refers to works produced or significantly influenced by artificial intelligence algorithms. These algorithms essentially analyze vast amounts of data and learn patterns that mimic human artistic styles. These algorithms can be used to produce not only visual art, but music, literature and even poetry.
AI artists use generative adversarial networks (GANs) and other machine learning models to generate original artworks based on existing works models that are capable of producing original artworks derived from their analysis of existing artistic works. AI’s ability to analyze and synthesize visual data is what allows it to produce original pieces, but it would be unable to do so without access to a massive cache of human-created works.
Criteria Requirements for Copyright Protection
Even if you exclude AI-generated art, not all creative works are eligible for copyright protection. In order to receive a copyright, creators must demonstrate that their piece is an original work of authorship fixed in a tangible medium of expression. According to 17 U.S.C § 102 , this definition may include:
- Literary works
- Musical works and accompanying lyrics
- Dramatic works and accompanying music
- Choreography
- Pictures, graphics and sculptures
- Movies and audiovisual works
- Sound recordings
- Architecture
Many people get confused about what “fixed in a tangible medium of expression” means in a time of so much digital art, but it’s simpler than it sounds. It means that an artistic work must be able to be perceived, reproduced or communicated directly or with assistance from a machine or other device.
Human vs. Machine: Who Owns AI Art?
Whether or not something can be copyrighted is ultimately up to the U.S. Copyright Office. As AI-generated art is relatively new, its official stance is still evolving. However, it has stated that AI art can be copyrighted—in some circumstances.
The extent of human involvement in an AI-generated work can significantly impact its copyright status. According to a new policy issued in March 2023 , an AI-generated piece that utilizes a high level of human involvement is more likely to receive copyright protection than a piece that does not.
Under U.S. law, a work must be the product of human creativity to qualify for copyright protection, meaning that a piece composed primarily of AI output would not be copyrightable unless considerably altered by a human.
For example, if a work of digital art, a poem or a book were generated by DALL-E, Midjourney, ChatGPT or a similar tool using only a human text prompt or description, it lacks human authorship and is ineligible for copyright protection. Conversely, an AI-generated artwork that is subsequently shaped and edited in Photoshop is much more likely to receive a copyright.
At the end of the day, the U.S. Copyright Office wants to see a substantial contribution from a human author before they agree to issue a copyright. However, that still leaves a significant gray area for creators to navigate, especially when considering the subjective nature of creativity.
If you’re unsure whether or not your AI-generated art can be copyrighted, the best thing you can do is consult with a knowledgeable intellectual property attorney. They can review the specifics of your case, analyze the likelihood of it receiving copyright protection and help you chart a path forward.
By Design Law: Leading Intellectual Property Lawyers in Seattle
AI-generated art isn’t the first controversial topic in copyright law, and it won’t be the last. As innovators like you continue to push the boundaries of what is possible, the legal considerations will be numerous. However, it’s nothing you can’t manage when you partner with the right legal advocate.
At By Design Law , we believe that great ideas are worth protecting. Whether you need help securing copyright, trademark, trade secret or patent protection, we’re here to help turn your vision into a reality. Before we can do that, though, you need to take the first step by reaching out to our firm.
Ready to get started? Schedule a free consultation online to speak with a top intellectual property lawyer today.
