Who Will Own the Art of the Future?

August 1, 2022

Types : Bylined Articles

WHEN OPENAI ANNOUNCED last week that its art-making AI system DALL-E is now available in beta, the company also gave users lucky enough to get off the waiting list what appeared to be a great gift. “Starting today,” the company wrote in a post, “users get full usage rights to commercialize the images they create with DALL-E, including the right to reprint, sell, and merchandise.” To be clear, this doesn’t mean OpenAI is relinquishing its own right to commercialize images users create using DALL-E. Dig into the terms of service and you’ll find only the promise that “OpenAI will not assert copyright over Content generated by the API for you or your end users.”

By preemptively giving users commercial usage rights, OpenAI is sidestepping some of the tricky intellectual property questions raised by this technology—which creates original images in a variety of styles, from photorealism to Picasso. Because some of DALL-E’s images are entirely machine-made, with the user contributing only an idea via text prompts, the results are likely not copyrightable at all. That would land them in the public domain, where everyone and no one “owns” them.

Images made using the inpainting feature (which allows users to edit images they upload by, say, instructing the AI to insert a smiling corgi into a Renaissance tableau of their choosing) could incorporate more expressive user choices. Some images created with the inpainting feature might involve enough distinctly human authorship to qualify for copyright protection, but others might not. While exciting, OpenAI’s commercial use announcement may remove some of the pressure artists ought to be putting on the law to clarify and expand the bounds of copyrightable human/machine collaborations. As such collaborations become more common, the novel concerns they raise should be confronted head on.


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Intellectual Property

The attorneys in Montgomery McCracken’s Intellectual Property Department provide legal services in various aspects of intellectual property law. We are dedicated to assisting our clients in protecting, managing, and leveraging […]

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