5) “I am in love with using AI! I use it to create new artwork and I also like using AI tools to edit my photography. But I’ve seen a lot of stories online about lawsuits and other artists saying that their work has been stolen and used in AI-generated artworks. So, I’m really worried – do I even own my AI art?”
This is going to be a law school exam question at some point! The classic legal answer is: it depends. Firstly, the AI you use is likely to have its own set of terms and conditions, and these would be the first port of call for any questions of ownership and usage rights. Secondly, there are a few different scenarios that might give you an idea of what it takes to ‘own’ a piece of novel or edited digital art. Let’s look at a few really ‘out there’ ways that AI could muddy the waters of ownership, just to illustrate the point:
A piece of work generated by AI through the prompt “A painting of Mickey Mouse driving a Range Rover in the style of Banksy".
It would be fair to say that resulting work is likely sufficiently original for a new copyright to subsist. But the work would be based on so much existing intellectual property that it would effectively be commercially unusable.
An original landscape photo is turned from a standard size to a panorama using Generative Fill, and other tourists are also edited out of the scene.
The copyright of the original image, of course, lies with the photographer, and as long as the editing does not materially impact the originality of the photo or pull in any uncleared third-party rights, the photographer would likely own the copyright, and be able to freely exploit the edited image (although they would not legitimately be able to claim that the photograph is 100% authentic).
The same landscape photo, but with a famous modern sculpture edited into the scene, using an AI tool.
Again, the copyright of the original photo would lie with the photographer, but not the added element. In which case, the resulting image would be original, yes. However, the fact that it adds a substantial underlying element (the sculpture), which is not the photographer’s original work means that the resulting image would likely infringe the copyright in the added sculpture, and so further clearances would be required before the image can be exploited.
As you can see, it’s a complex space, with new tools being released almost every day – each taking their own approach. Equally, every day brings news of progress in regulation and legal challenges around the world that, while they may not have relevance to our own territories, certainly inform the conversation. The main thing to keep in mind is that, like every creative, every case is different. And while technology and the law are moving at pace, it’s critical to seek out specific legal advice if you have real concerns, worries or specific questions around your use of GenAI.