By now you’ve probably tried one of the new AI-powered image generator tools, which ‘sample’ a range of image repository websites and online references to create all new visuals. based on text prompts.
SLAB is the best known of these new applications, while Mid Road has also become popular in recent months, allowing users to create stunning visual art with virtually no effort.
But what are your rights to use the visuals you create? And for marketers, can you actually use these images in your content, without copyright risk?
Right now it looks like you can – although there are a few conditions to consider.
According terms of use for SLABusers have the right to use their creations for any purpose, including commercial purposes:
“Subject to your compliance with these Terms and our Content Policy, you may use Generations for any lawful purpose, including commercial purposes. This means you can sell your rights to the builds you create, incorporate them into works such as books, websites, and presentations, and otherwise market them.”
Yes, you can even sell the visuals you create, although most photo platforms are now reevaluate whether they will actually accept such products for sale.
This week, Getty Images has become the latest platform to prohibit the download and sale of artwork generated by AI art toolswhich, according to Getty, is due to:
“…concerns regarding the copyright of the results of these models and unresolved rights issues regarding the imagery, image metadata and the people contained in the imagery.”
Part of the concern here is that the visuals that are used as source material for these AI-generated depictions may not be licensed for commercial purposes.
Although even that is not necessarily a definitive legal obstacle.
As explained by The edge:
“Software like Stable Diffusion [another AI art tool] is formed on copyrighted images retrieved from the web, including personal art blogs, news sites, and photo sites like Getty Images. The act of scraping is legal in the United States, and it appears that the release of the software is covered by the “fair use” doctrine. But fair use offers weaker protection to commercial activities such as the sale of images, and some artists whose work has been scraped and imitated by companies making AI image generators have called for new laws regulate this area.”
Indeed, various proposals have been put forward to potentially regulate and even restrict the use of these tools in order to protect artists, many of whom could end up unemployed as a result. But such rules are not yet in place, and it could take years before a legal consensus is established on how to better protect artists whose work originates from the back-end.
There are even questions about the technical process of creation, and how this applies to legal protection in this sense. Back in February the United States Copyright Office effectively implied that AI-generated images cannot be copyrighted at all, as an element of “human authorship” is required.
In terms of specific content policies, DALL·E Terms of Service say people can’t use the app to “create, upload, or share images that are not G-rated or may cause harm.”
So no depictions of violence or hateful symbols, while the DALL E team also encourages users to proactively disclose the involvement of AI in their content.
Additional DALL·E guidelines are:
- Do not upload images of people without their consent.
- Do not upload images for which you do not have the appropriate usage rights.
- Do not create images of public figures.
This is where further complications could arise. As noted JumpStoryusers of AI image generation tools should beware of potential copyright issues when seeking to create images that include real people, as they may end up extracting images of real people’s faces.
JumpStory notes that many source images for the DALL E project actually come from Flickr and are subject to Flickr Terms of Service. For most generated representations, like landscapes and artwork etc., this is not a problem, but it is possible that one of these tools will end up using a person’s real face, while recreations of public figures could also be subject to defamation and misrepresentation, depending on the context.
Again, the legal specifics here are complex, and really, there’s no real precedent to proceed, so how such a case could actually be pursued is unclear. But if you’re looking to generate images of people, there can be complications if that visual ends up looking directly like a real person.
Clearly stating that the image is AI-generated will, in most cases, provide some level of clarity. But as a precaution, avoiding clear representations of people’s faces in your created images might be a safer bet.
MidJourney Terms also make it clear that intellectual property infringement is not acceptable:
“If you knowingly infringe someone else’s intellectual property, and it costs us money, we’ll come find you and collect that money from you. We may also do other things, such as trying to get a court to pay you our attorney’s fees. Do not do it.
Strangely harsh speaking for legal documentation, but the impetus is clear – while you can use these tools to create art, creating images that are clearly derivative or infringing on intellectual property could be problematic. User discretion in this sense is advised.
But really, that’s where it is, from a legal standpoint – while these systems take elements from other online visuals, the actual image you’ve created has never existed until created by you, and is therefore not subject to copyright because your prompt is, in fact, the original source.
At some point the technical legal aspects of this may change – and I suspect at some point someone will be holding an art exhibit on AI or the like, or selling a collection of artwork online AI-generated art that depicts significant elements of the work of other artists. , and this will trigger a new legal debate about what constitutes intellectual property infringement in this regard.
But at present, full use of images created in these tools is largely acceptable, according to the terms stated in the documentation for the tools themselves.
Note: This is not legal advice, and it is worth checking with your own legal team to clarify your company’s position on this before proceeding.