Some AI-generated art can be trademarked, US Copyright Office says
Christopher Hutton
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The U.S. Copyright Office declared that some artwork generated by artificial intelligence could be trademarked, clarifying the legal status of the derivative creation method.
The office released new guidance on Wednesday detailing which images are affected, since most AI-generated art is derivative of other content on the internet. The office will allow an image to be copyrighted if it can be proved it was “the result of mechanical reproduction,” such as a text prompt. It would also be eligible if they reflect the creator’s “own mental conception.”
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“The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work,” the office noted.
“Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material,” the office added. “Instead, these prompts function more like instructions to a commissioned artist.” For example, a user could ask the image generator DALL-E to create an image resembling a Vincent Van Gogh painting but would not be allowed to copyright it because it is derivative of Van Gogh.
AI-powered image generators like DALL-E and Midjourney have grown in popularity online. Many bots will use text prompts to create an image, while others will take pictures and inspiration from other sources to create their responses.
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This has made art critics and scholars hesitant to promote the technology due to worries about art theft.
The Copyright Office ruled for the first time on AI art last month when it decided that images generated by the AI image bot Midjourney and published in the comic book Zarya of the Dawn could not be protected. The text and story could be copyrighted, however.