Copyright for Photography

Generative artificial intelligence (AI) describes algorithms that can be used to create new content, including images, audio, text, video, and more. Midjourney and DALL-E 2 (developed by OpenAI, of ChatGPT fame) are just a few examples of text-to-image AI art generators. 

Photography is no stranger to technological disruption, but generative AI has unearthed a slew of new conundrums for creators in the field. Here are a few of the primary considerations related to copyright and intellectual property: 

Copyrighted content in AI inputs

• Generative AI models are trained on massive data sets, which may include text, images, and other works downloaded from the Internet largely without permission from rights holders. AI companies argue that their training processes constitute fair use.
• OpenAI now offers an option to remove images from training future image generation models.

Attribution

• Generative AI models scrape the Internet for content, but oftentimes the authorship of that content is entirely unknown. When users ask an AI model to do something, it is extremely computational complex to know what works it drew on. In this context, its virtually impossible to provide attribution.

Copyright ownership in AI outputs 

• Whether works generated by AI are deserving of copyright protection is a topic of debate. Some argue that AI programs are akin to other tools that humans use to create copyright-protected works (i.e. the camera), and that at least some AI generated works deserve copyright protection.
• Others say that the users do not have enough control over outputs (i.e. skill and judgment) for AI-generated works to earn copyright protection. 

In late 2021, the Canadian Intellectual Property Office (CIPO) registered a copyright for a Starry Night-inspired painting titled Suryast.

The copyright registration lists two co-authors – one human, the other an AI painting app – making Suryast the first Canadian copyright registration with an AI author. 

German photographer and photomedia artist Boris Eldagsen won the Creative category of the 2023 Sony World Photography Award for the image Pseudomnesia: The Electrician. However, he ultimately refused the prize on the grounds that he used DALL-E 2 to create the image. 

Eldagsen has said that his goal in entering the work was to find out if competitions were prepared for AI images to enter. “They are not,” he stated in an April 13, 2023 statement on his website.

“AI images and photography should not compete with each other in an award like this. They are different entities. AI is not photography. Therefore I will not accept the award.”

Some creators use the hastag #promptography to distinguish AI-generated images from original photographs. 

Source: Sony World Photography Award winner reveals entry was AI-generated, rejects prize. (April 19, 2023). Artforum.