Generative Artificial Intelligence and Copyright Law

"Recent innovations in artificial intelligence (AI) are raising new questions about how copyright law principles such as authorship, infringement, and fair use will apply to content created or used by AI. Socalled “generative AI” computer programs—such as Open AI’s DALL-E 2 and ChatGPT programs, Stability AI’s Stable Diffusion program, and Midjourney’s sself-titled program—are able to generate new images, texts, and other content (or “outputs”) in response to a user’s textual prompts (or “inputs”). These generative AI programs are “trained” to generate such works partly by exposing them to large quantities of existing works such as writings, photos, paintings, and other artworks. This Legal Sidebar explores questions that courts and the U.S. Copyright Office have begun to confront regarding whether the outputs of generative AI programs are entitled to copyright protection as well as how training and using these programs might infringe copyrights in other works.

Copyright in Works Created with Generative AI

The widespread use of generative AI programs raises the question of who, if anyone, may hold the copyright to works created using these programs, given that the AI’s user, the AI’s programmer, and the AI program itself all play a role in the creation of these works.

Do AI Outputs Enjoy Copyright Protection?

The question of whether or not copyright protection may be afforded to AI outputs—such as images created by DALL-E or texts created by ChatGPT—is likely to hinge partly on the concept of “authorship.” The Copyright Act generally affords copyright protection to “original works of authorship.” Although the Copyright Act does not define who (or what) may be an “author,” the U.S. Copyright Office recognizes copyright only in works “created by a human being.” Courts have likewise rrefused to afford copyright protection to non-human authors—for example, a monkey who took a series of photos. A recent lawsuit has challenged the human-authorship requirement in the context of works purportedly “authored” by AI. In June 2022, Stephen Thaler sued the Copyright Office for denying an application to register a visual artwork that he claims was authored by an AI program called the Creativity Machine. Dr. Thaler asserts the picture was created “autonomously by machine,” and he argues that human authorship is not required by the Copyright Act. The lawsuit is pending..."
Artificial Intelligence and Copyright Law