WHO OWNS IMAGES CREATED THROUGH ARTIFICIAL INTELLIGENCE?
Creating images through artificial intelligence engines such as OPEN AI’s DALL-E2 is becoming more and more mainstream. Take for example this beautiful painting of a court building that I made:
I “created” this image (hereinafter the “Best Courthouse Painting Ever”) using DALL-E2 image generation AI using the prompt “oil painting of a court building”. So if I wanted to monetize that picture, could I create and sell shirts or other merchandise with that picture on it and claim that it is my own? According to OPEN AI’s terms of service, subject to their content policy and terms, I “own” the Best Courthouse Painting Ever since I created it and have the right to reprint, sell and merchandize it. As an aside, since I created this image at work on my work computer, in all likelihood my law firm would own a copyright instead of me individually, but let’s ignore that subtlety entirely. Instead, let’s ask the question, do I “own” the Best Courthouse Painting Ever image at all?
Copyright is the thing that allows the author/owners control and monetize their works by, in part, stopping others from copying or using their works in most cases. According to new guidance published in the Federal Register on March 16, 2023 the Copyright Office has determined that I do not in fact have a copyright in the Best Courthouse Painting Ever, no matter how good it is. Even though I typed in the prompt “oil painting of a court building”, the picture itself was generated by the AI. Thus, I am not the “author” for copyright purposes. Moreover, since the AI is not a human, the AI does not own the copyright either. As far back as 1973, the Copyright Office warned that it would not register materials that did not “owe their origin to a human agent.”
Even though I was perhaps inspired to type the words “oil painting of a court building” to achieve this image, I can’t and don’t own the copyright in it. Since I cannot get a copyright, I could not prevent another person from copying my “creation” and monetizing it. Seemingly, neither could Open AI. Unfortunately, my plan to get rich by exclusively selling pictures of the Best Courthouse Painting Ever is thwarted.