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Can AI Art Be Copyrighted?

Generative AI tools like Midjourney, Stable Diffusion, and DALL-E have taken the world by storm with their ability to take simple text prompts and turn them into vibrant works of art that anyone can enjoy. But since the people writing the prompts to create these works didn't actually create the works themselves, the legal issues surrounding ownership of these works are thorny.

The first issue arises because AI-generated art does not come from out of thin air: The AI needs to be trained first, and that training is done with art that has been posted all over the Internet, with or without the consent of the original artist. This has angered plenty of artists whose art was used to train AI without their knowledge. However, it's likely that this falls under the fair-use provisions of copyright law, which allow for uses of copyrighted works that are transformative; the AI model needs to be trained on the original material in order to create new works inspired by it.

But what about the finished product? Once you've used AI to create a derivative work, can this AI art be copyrighted?

According to the U.S. Copyright Office, there's no copyright protection for any work of art created by a non-human. That means that any product of a generative AI model is not automatically protected by copyright like a human-created work would be.

However, it's not as black-and-white as that. In cases where a human contributed substantially to the finished product by collaborating with the AI, the line gets blurry. If it's possible to separate what the AI created and what the human-created, the copyright will only focus on the part the human created. But if their contributions are inextricably intertwined, the U.S. Copyright Office may examine the human's influence and the machine's output to determine whether a human did enough of the work to make the product eligible for copyright protection.

The first major legal challenge on this topic came in 2022, when a graphic novel called Zarya of the Dawn was granted copyright protection. A few months later, that decision was reversed and the protection was partially canceled because the U.S. Copyright Office learned that the artwork in the book was generated with Midjourney. Ultimately, the office decided that author Kris Kashtanova's text was protected by copyright because they wrote it without AI, but the visual elements were not protected because the art was machine-generated.

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