ARE IMAGES CREATED THROUGH ARTIFICIAL INTELLIGENCE THEMSELVES COPYRIGHT INFRINGEMENT?
In a recent article we discussed how images created through artificial intelligence cannot generally achieve copyright protection. A more murky question is was there a copyright infringement by the AI generator itself? Copyrights exist not only in original works but also derivatives of those works. For example, if I took a picture of a court building on my phone I would own the copyright to that picture (at least in the United States). If I then applied artistic filters in Photoshop to make it look like an oil painting, I would still own the derivative work “oil painting” result.
What happens if instead of starting with a picture, I start with the text prompt “oil painting of a court building”, in an artificial intelligence image creator? At the outset, how does AI even know what a courthouse looks like? Generally, it is trained through millions of sample images. Hopefully the AI’s owners would have taken the steps to be sure they had the right to use the sample images for this training. After this training, if the engine completely makes up the image, no copyright infringement would seemingly have occurred. If it instead basically applies filters to a picture it found on line, then it may have infringed the copyright of the original photographer.
This case is actually pending now. Getty Images (US), Inc. has sued Stability AI, Inc. in the United States District Court for the District of Delaware for copyright infringement. Getty is a stock photograph service that has millions of images available for purchase by journalists and others. Stability AI is the owner of the Stable Diffusion image creation AI. Getty has alleged that Stability used twelve million of Getty’s pictures to train Stable Diffusion without authorization or payment to Getty.
Getty argues that AI images created based upon the Getty images are derivative works and copyright infringement. While this and similar cases are pending, the use of images created by AI trained on images without permission has been cast into doubt.