Legal Takes

Photographers and AI: Who Owns the Copyright?

January 19, 2023

By Aaron M. Arce Stark, Esquire

© Jzea

Headlines are buzzing with reports about how Artificial Intelligence (AI) is evolving rapidly and will change our lives: ChatGPT is disrupting writing, search and education, among other areas; an AI-powered robot lawyer is scheduled to fight a traffic ticket in court; and AI is even enhancing selfies. For photographers, AI is increasingly being used to create, edit, and organize photos but it continues to create issues and questions about copyrights. When it comes to AI and copyright, here are just two of the questions being debated today:

  1. Who owns the copyright in AI-generated images? Some people are creating works created exclusively by AI. In these works, who owns the copyright?
  2. Who owns the copyright in images edited with AI? Some photographers use AI tools to edit and enhance their images. For these images, are the resulting images considered original works protected by copyright? Or simply modifications of the original photograph?

AI is also challenging traditional notions of authorship—the identity of the person or entity that created a work. Authorship is important because it determines who owns the copyright, and who is entitled to the legal protections and benefits afforded by law. Generally, the author of a work is the person who created it. But with artificial intelligence, people are divided as to who (or what) can claim authorship. Some argue that the artificial intelligence should be considered the author, as it was responsible for generating the image. Others argue that the person who created the AI should be considered the creator, as they were responsible for designing and training the AI to generate the image. Still others argue that no one can be considered the author and the work should be in the public domain (and free to use).

[Read: New AI Apps Raise Questions About Copyright and More]

It is a complex landscape. But we may get some answers in 2023. The U.S. Copyright Office is currently defending a lawsuit initiated by a company that is arguing its copyright registration application was improperly denied. The Copyright Office denied the application because artificial intelligence created the work and, thus, “lacks the human authorship necessary to support a copyright claim.”

While the Copyright Office appears steadfast on its decision that a work created exclusively by artificial intelligence is ineligible for copyright, the office appears open to exploring the possibility of granting copyrights for works created by humans along with AI. Shira Perlmutter, the Register of Copyrights and Director of the Copyright Office, recently stated that her office will explore open questions on registration for works created by humans with AI in 2023.

No one knows exactly what the Copyright Office will ultimately decide but many believe the outcome will likely hinge on a balance between human and artificial intelligence involvement. The more involvement/input from a person will likely result in a stronger case that the human will have a copyright in the generated image. For now, photographers and creators who are looking to copyright their work may have a more difficult path if using AI. Because copyright cases are intensely fact specific, it is always a good idea to consult a qualified attorney with questions about the “copyrightability” of a particular work.

Aaron M. Arce Stark is a lawyer for artists and entrepreneurs. Learn more about his law firm, ASH LAW LLC, at Stark.Law LLC.