Yesterday, I was the speaker for a webinar presented by The Grove. It was ostensibly about valuing copyright infringements but it was open to questions and someone asked one that evolved into a doozy. The question was about preventing clients from using your work in AI-creations but, as we talked about it it dawned on me that we have a serious issue to face: AI embedded in the tools creatives are using may affect the copyrightability of the work produced.
See, courts and the US Copyright Office have said, so far, that work created by AI is not copyrightable. It lacks the human creation element necessary1. However, historically, using tools like Photoshop have not challenged copyrightability. It’s not been an issue at all.
Now, Photoshop and other tools are using AI–incorporating it in ways we never anticipated; so what does that mean legally? What about the work created now?
The answer is: we don’t know, yet.
It *may* be enough if you create a work without the AI tools then create a derivative work using the tools. The underlying work would be copyrightable and a copyright extends to derivative works of the original, with only the new (copyrightable) elements not being protected. So, in theory, that may mean that a derivative work created using AI-infused tools will be covered by the original copyright and stay protected.
But that’s just theory.
We won’t know for sure until the issue gets raised in and decided by a court…preferably more than one. So what to do meanwhile?
Safest bet is to avoid using AI-infused tools in your creative process. Just say no. But, if you must, I’d suggest you make sure you start with a “clean” (non-AI) work and register its copyright before you start making derivatives, using the AI tools. And, if you can, document your process in some way (write it up, make a recording, whatever), just in case you need the evidence some time in the future.
Honestly, I’m hearing more and more about younger photographers (and others) going analog(ue). That’s really the best, in my opinion. Plus it encourages creativity. Remember, creativity flourishes in constraint, not in unlimited possibilities. But more on that another day…
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- And no, you can’t lie and say that you didn’t use AI in the creation–that will come out if you ever have to litigate and that would be super bad. ↩︎