“PROMPT ART”, ARTIFICIAL INTELLIGENCE AND COPYRIGHT: A PRACTICAL GUIDE.
The”Prompt Art“allows users of websites such as Midjourney, DALL-E, NightCafé or Snowpixel to have access to artificial intelligence whose mission is to generate images based solely on the written instructions of Internet users. The results are impressive and allowed an image generated exclusively by artificial intelligence to win the first prize in an art competition in the United States. It is in this context that several practical questions arise about the interaction between copyright and creations generated by artificial intelligence.
The day of August 26, 2022 marked a turning point in the history of artistic creation, as for the first time a work entirely generated by artificial intelligence, in this case Midjourney, won the first prize in the Colorado State Fair Fine Arts Competition.1. This victory caused controversy, to the point of forcing the organizers of the competition to review their criteria for validating works for the year 2023.2.
If this victory is controversial, it is because it invites us to decide the question of the rights that will be granted to artificial intelligence at the beginning of the systematization of its development in all sectors.
Like Midjourney, the sites DALL-E, NightCafé and Snowpixel propose to illustrate the written instructions of Internet users using artificial intelligence and this is called” Prompt Art ”. In practice, the Internet user writes a sentence describing the work he wants to see made, for example” Post-Apocalyptic Wonderland ” and artificial intelligence is responsible for offering him several visual creations of written instructions.
The rise in the supply of visual arts creation by artificial intelligence and the quality of the rendering is very likely to lead to a takeover by professionals who will see it as an opportunity to generate visuals for commercial use without having to pay a human creator.
However, everything is not so simple and if today the rules applicable to creations generated by artificial intelligence remain unclear, we must be in a position to anticipate the implementation of the legal framework that is being prepared. For now, here are some answers to the practical questions posed by creations generated by artificial intelligence.
Who is the author of a work generated by artificial intelligence?
The answer depends on the degree of intervention of artificial intelligence in the creation process:
1) In the case of computer-aided creation (CAD), i.e. cases where the human person is not completely excluded from the creative process and uses a machine as a technical means to create, the human person is the owner of the copyright on his work. This is how a performer was granted copyright on a musical work created with the assistance of a composition software.3.
2) In the case of a creation generated spontaneously without the direct intervention of a human person, this production cannot be qualified as” Of work ” in the sense of copyright, because quality” Author of a work ” is reserved for humans under French law.
The creations of Midjourney and Prompt Art sites are therefore not protectable under copyright in France. The question of attributing copyright to a creation entirely generated by artificial intelligence finds different answers in different countries, especially in Great Britain, which is one of the few countries to offer copyright protection to computer-generated works without human authors.4.
Can I use a work generated exclusively by artificial intelligence in a commercial context?
In the absence of copyright protection, the answer to this question can be found in the General Terms of Use or” Terms of service ” sites that provide Internet users with creative artificial intelligence. Midjourney grants users of the free version a license to non-commercial use of works generated by artificial intelligence, while users of the paid service” Corporate membership ” are authorized to exploit the works as part of their commercial activity.
For its part, DALL-E allows all users to use the works for commercial purposes. It is therefore appropriate to refer to the general conditions of use of each site, while keeping in mind that they may be modified at any time without notice by the operator of the website and that they are often part of a foreign law logic.
Can I prohibit the copying or reproduction of an image generated spontaneously by artificial intelligence?
It is the concept of counterfeiting that makes it possible to prevent a work from being copied or reproduced, and counterfeiting is intrinsically linked to the existence of copyright.
As we have seen, creations generated spontaneously by artificial intelligence cannot benefit from copyright protection in France. For this reason, it is not possible to oppose their copying or reproduction on the basis of counterfeiting. In addition, websites such as Midjourney, DALL-E, NightCafé and Snowpixel for the most part grant themselves a non-exclusive license to all works generated by artificial intelligence in order to be able to display them on the website's news feed and allow Internet users to use them.
What happens when artificial intelligence is inspired by or integrates a pre-existing work?
In order to generate an image, artificial intelligence draws its inspiration from a bank of pre-existing images that can be protected by copyright. It is also possible to ask artificial intelligence to generate a work.” In the way ” by a well-known author whose works are protected by copyright.
In this case, it should be verified that the work incorporated in the image generated by artificial intelligence is royalty-free in order not to risk being responsible for acts of counterfeiting, especially in the case of commercial use of the image generated. As a reminder, in France, copyright expires 70 years after the author's death, with the exception of moral rights, which survives as long as there are heirs of the author.
What legal developments should be anticipated in terms of the protection of works exclusively generated by artificial intelligence?
A proposal for a Regulation on artificial intelligence was published on 21 April 2021 by the European Commission5 and a final version of the draft should be adopted by 2023. Although the proposed Regulation does not directly address the issue of copyright, it does, however, give the provider of an artificial intelligence system a central position, in particular with regard to liability in the event of damage created by artificial intelligence.
This position is taken up by the Higher Council for Literary and Artistic Property (CSPLA), which recommends in its report published on January 27, 20206 to designate the designer of artificial intelligence as the author of the works generated by it.
In the future, it is therefore the natural persons or companies that develop artificial intelligences that could be required to own the copyright on automatically generated works, to be continued...
Link to the article published on Village Justice.
[1]https://www.lebigdata.fr/midjourney-concours-art
[3]https://www.doctrine.fr/d/CA/Paris/2006/SK507B6E9920F763919D87