Since I work in the commercial art world for a big international publishing company, it’s part of my job to keep knowledgeable about IP (Intellectual Property) Law. It turns out it’s not just enough to do great book covers, you have to make sure you don’t get in legal trouble doing it. I also happen to be the daughter of a Judge, so I grew up around law and find it pretty interesting. Most artists I know are a bit allergic to legalese (especially when it comes to contracts) but getting comfortable with legal language is a great skill to have in a creative career. Especially around the realm of new technology. (Inserting plug here for the Volunteer Lawyers for the Arts who do great affordable seminars on art related topics all the time.)

Here’s where I remind you I’m not a lawyer so an actual lawyer can explain all this more perfectly, but I’m an artist writing for artists, and these are opinions & educated guesses (Not. A. Lawyer.) so here we go:

I’m talking about US law, as that is my expertise, but IP/copyright laws are very similar across many countries, and we are speaking in general terms. The most important thing to understand about legal systems is that there are 2 types of law: Black Letter Law and Common Law. I’m oversimplifying, but Black Letter Law are the rules that are so agreed upon and so encoded in laws and rules that there’s really no debating them. Murder is bad, theft is wrong…that kind of thing. Common Law is developed over time by courts and where “precedence” (all the cases that have been decided before in the same jurisdiction) has built up laws and applications of those laws over time. It’s also much more subject to change. It’s where laws governing new technologies are developed. And, no surprise, IP and Copyright Law is almost entirely in the domain of Common Law.

I bring this up because understanding this makes it easier to not, say, panic too much over new technologies (cough cough NFTS cough). And I’ve seen a lot of panic recently around the new AI-generated art platforms popping up all over the internet. I was ready to launch into an intro of these platforms for folks that don’t know what I’m talking about but bless Arnie Fenner for beating me to the punch. Go read his post here if you don’t know what I’m talking about.

I’ve been noticing a lot of experimentation, fighting, and panic over these AI platforms — I am here to tell you, and let me say this loud and clear, THE AIs ARE NOT REPLACING ILLUSTRATORS. Not in a commercial sense, at least. I imagine this is a repeat of the same concern when Google Images launched. Anything that makes art easier to find and be used will be used by amateurs. It will also, unfortunately be used illegally. But AI generated art cannot be used legally commercially because it cannot be copyrighted*. That means no company can use it for a book cover. It cannot be used on Magic Cards. It cannot be used in advertising. It cannot be sold on merchandise. Are there folks that will do so? Of course, just like print on demand services are rife with people’s stolen artwork. It’s a new interesting tech so it might be used by companies for a stunt or for novelty value while the laws are still being figured out. AI generated art is an art video game. Can it be used for inspiration? Yes. Can it be used for reference? Maybe—just remember to always use multiple sources of reference—ask Shepard Fairey.

 

Remember that in most places a creator has an automatic copyright over anything they create that is original and free of other existing copyrights. That means you have the copyright for original characters, but Disney’s copyright is already existent so you do not have a copyright to a drawing of Mickey Mouse you make. AIs are not people, thus they cannot be granted a copyright. The folks that “own” the AI can also not claim copyright because the AI is using an infinite amount of images (many of which are copyrighted) to create the images it makes, because these AIs have access to the entire internet.

Why did I bring up precedence earlier? Because that is what you watch for in the cases of new technology. You see what the first rulings are on the issues, and if they all start going in the same direction, well then you know how the Common Law is being built. The US Copyright Office ruled that you cannot copyright AI generated art. So that means that every single one of the AI Art platforms have to be very careful about their wording. Some already are, and some haven’t caught up yet. You can look at a few sites user terms here (but also note that theyve been changing rapidly over the past few weeks).

Some of these sites are very careful to say nothing generated on their platform can be used for commercial purposes. Some say they “own” everything created on the site and the user has no ownership rights. Some have such vague wording it’s hard to understand what they are saying. Ultimately it doesn’t matter. As of right now nothing created by these platforms generates a copyrightable piece of art. Could that change? Sure, there are artists suing right now to try to gain copyright over work they’ve created with the help of AI. I think there are some very strictly defined exceptions where they might have a case (having the AI only pull from a pool of art that the artist themselves created, maybe?) but I highly doubt the general ruling being overturned. At least til the robot uprising when robots can go to art school alongside us.

There are other legal issues definitely currently being hashed out in court (here’s a roundup of a few issues) — like can an AI use an artist’s work on the internet without permission? Is that in itself a copyright violation? I expect that will go the same way as Google Images — Google doesn’t need your permission to show images of art you’ve created because they didn’t put them on the internet, they just point to their location. But we’ll see. I’m sure there are all kinds of legal ramifications that we haven’t even thought of yet. Like I said, IP Law is fascinating stuff. (I’m sure my Judge mom wishes I would have gone to Law School and become an IP lawyer instead of a designer, but here we are.)

 

Remember what you CAN do and what you CAN DO LEGALLY is very different. Pirating is obviously always a problem. But like all pirating, the small scale pirates get away with it and as soon as they become too successful/noticeable they are stopped by cease and desists or by lawsuits. Professional illustrators are not in danger of Google Image searching taking their jobs. And they’re not in danger of AI-generated art platforms taking their jobs either.

And obviously I havent even touched on the question of whether AI-generated art is any GOOD. I honestly haven’t seen anything so good I would put it on a book cover, even if I legally could. Will these platforms get easier to control and maybe stop looking like all the same slick weird style? Maybe? But it’s never going to take the place of an illustrator taking the combined thoughts of an author, editor, & art director and turning that into something only they can create. At least not until we get to a true Asimovian level of AIs and robots and we can debate whether they have souls. Then we can rediscuss whether they make truly original art and whether they can copyright it. Til then, I’m not worried and you shouldn’t be either.

 

*Additional explanation: Elsewhere (twitter) & in comments below people have brought up other kinds of non-copyrighted art as an example of companies using art without copyright. So let me elaborate. Royalty-Free art and other art that is “in the public domain” had a copyright and that copyright expired. Pretty much everything created before 1920 is in the public domain. (Why not later? Because of the first Mickey Mouse cartoon & the immense amount of money Disney throws into lawyers and lobbyists literally adapting copyright law to protect Mickey.) When something is in the public domain it means the copyright has expired, but it once had a legal copyright. If I use an image from an old victorian era catalog on a book cover, I am clear to use that because the image is in the public domain, because it is so old that there are no possible copyright claims on it. Royalty-free art is different. Royalty-free art is NOT copyright free. The creator had a copyright, and either still has the copyright or has sold the copyright to someone else (like a stock agency, for example). The current copyright user is granting someone the right to use the image without worrying about tracking usage and paying royalties. But there is still a copyright floating around. And there are limits to the usages you can take. Just look at Shutterstock’s user license rules, for example. The header is literally “Limited License to Users”.

AI-generated art is different because it uses other art (much of which is currently copyrighted) to generate the new piece of art. The legal cases I am most interested in seeing are the ones that delve into whether AI-generated art is subject to derivative copyrights. In other words, if an AI is using images of Mickey Mouse on the internet to generate new pieces of art (never mind countless artists) then are those works derivative of the earlier-standing copyrights? It would be the same issue of whether an artist using a photo for reference for a painting is using the copyright of the original image or not. These cases are extremely tricky. But when I look at the AI sites that are literally offering to rip off a living artist’s style, using that artist’s name? Well that’s not only using that artist’s copyrights by accident, that’s using their body of work and their name to advertise new services. Like I said, I’m no lawyer, but that sounds like a blatant legal infringement to me. If not a copyright infringement, then potentially a trademark one.

To those of you pointing out that the legal ruling was about the AI not being able to copyright the work, not necessarily that the company can’t copyright the work generated — you’re right, I glossed over an important distinction, and that is an important piece. As above, I will state that the user agreement terms and legal caseload piling up is going to make for some interesting cat and mouse games here around derivative copyrights & ability to use these images for commercial end-products. That’s why there’s the huge variance over the terms these companies are offering — in some they say they own all the rights. In some they say you own all the rights. But everywhere I look, people are very careful about using the term “copyright” and it seems, to me, that it’s because there have not been enough rulings in this area to definitively say who owns the copyrights here. To be determined.

The point of this article isn’t to say that no change or damage is going to come to the art community because of the mis-use of AI-generated art. Of course it will. Every new tool gets abused. (See: NFTs, Google Image Search, Photoshop, Moveable Type Presses!) Just like the ability right-click an image on Google Images does damage to the art community every day. I’m not naive. What I AM saying, however, is that this particular tool does not seem, to me—with 20+ years of experience in commercial art working for a giant corporate entity—like it is going to be abused any worse than the tools we’ve already survived. I think it is not the harbinger of doom I am seeing artists panicking about online. Let’s all take a deep breath, and keep an eye on this thing as it develops, and see what happens. If you want to be scared, I’m sure you have a much scarier deadline for something looming. I know I do.