"To say that AI-generated art is controversial would be something of an
understatement. The appearance last year of free tools like Stable Diffusion
has not just thrown the world of art into turmoil, it has raised profound
questions about the nature of human creativity. AI art also involves thorny
issues of copyright that have piqued the interest of lawyers, who sense an
opportunity to sue tech companies for large sums.
Most AI art programs draw on billions of existing images to formulate internal
rules about shapes, colours and styles. Many, perhaps most, of those images
will be under copyright. There are already several court cases that will help
to decide the legality of this approach, including an important new one in the
US brought by Getty Images against Stability AI, the company behind Stable
Diffusion. But whatever the outcomes of these, it seems likely that
AI-generated art will continue to exist in some form, given its huge potential,
and the interest it has generated among the business world and general public.
Similarly, the copyright status of the end-result of using AI to produce new
images is ill-defined. In February 2022, the US copyright Office ruled that an
AI can’t copyright its art because it didn’t include an element of “human
authorship”. However, more recently, an artist has received US copyright
registration on a graphic novel that features AI-generated artwork.
In this context, it is sometimes forgotten that copyright for the fine arts is
relatively new. Modern copyright dates from the 1710 Statute of Anne, which
applied to “books and other writings”. Although the special class of engravings
received protection in 1735, it was not until 1862 that the fine arts were
eligible for copyright in the UK; for the US, it was only in 1870.
Significantly, one category of copyrightable subject matter explicitly
mentioned in the US law was “chromo” — color lithographs. Copyright became an
issue for art once it was possible to make large numbers of high-quality color
facsimiles of original works. Before such technology was cheaply available, it
was only through artists’ copies of their own works, plus often highly popular
engravings, that a painting or drawing could be shared more widely."
*** Xanni ***
Chief Scientist, Xanadu
Partner, Glass Wings
Manager, Serious Cybernetics