Industry News

New AI Apps Raise Questions About Copyright and More

December 13, 2022

By Hillary K. Grigonis

Lensa AI/ Instagram

If the top three apps on the App Store charts are any indication, AI art is seeing a mainstream popularity surge. But as AI apps like Lensa AI rise in popularity, so do the questions. If a work of art is generated by a computer, then who owns the copyright? If a computer makes an ethically wrong decision, who is responsible? The questions are almost as plentiful as the now common illustrated “selfies” pilfering across social media.

Lensa AI, an AI app created by Prisma Labs, has surged in popularity after introducing Magic Avatars last month. (Dawn AI Avatars and AI Art – AI Generator are currently in the second and third top spots in the U.S. App Store charts.) The tool allows users to upload 10 photos of themselves and, for a fee, spits back illustrated avatars in different styles. The resulting images are created entirely by artificial intelligence, mixing the facial features in the uploaded photos with the Stable Diffusion framework to deliver illustrations after just a few minutes.

[Read: Photo Copyright Basics and Rock Solid Contracts]

The AI app’s rise in popularity, however, has also been met with criticism. Artists have been quick to question where AI art falls in copyright laws. Aaron M. Arce Stark, attorney at Stark Law, says that the copyright of an AI-generated artwork is going to vary based on how much human input was involved. Previous court cases like the infamous monkey selfie have established that only humans can own a copyright.

When AI randomly generates artwork, then there’s no human authorship, Stark says. “If you’re letting the computer take over for you, like pulling a lever on a slot machine, then it’s public domain really, anyone could take that output. You don’t have intellectual property rights to it.”

The answer isn’t a one-size-fits-all, however. Stark says that the more human input that’s involved, the higher that likelihood that the artwork is eligible for copyright. When AI is used to create an artist’s specific vision with direct manipulation by the artist, then the artist would have intellectual property rights. Similarly, using AI to edit a photograph, such as using Prisma’s AI blemish remover, wouldn’t void the copyright of the original photograph.

Stark adds that while users may not own the rights to the photos generated by Magic Avatar, individuals still have a right of publicity. The right to publicity prevents someones likeness, including their image, from being used commercially without permission. Right to privacy laws, which vary by state, could also come into play.

Another issue is potential copyright infringement. AI software is trained on datasets of images. If the dataset includes copyrighted images, there could be potential for a copyright infringement. However, Stark said that a human element is required here as well; the infringer needs to know about the original image. If an AI software infringed on a copyright, and the user didn’t know about the original image, then the user wouldn’t be at fault. The software company, however, could be if they included the copyrighted image in the database, Stark said. The Stable Diffusion framework is based on a dataset of images scraped from the internet that includes copyrighted images. Some AI generators have reproduced popular watermarks.

[Read: Should Photographers Watermark High School Senior Portraits?]

While Lensa’s surge in popularity brought additional attention to AI artwork, the concerns artists have raised over AI art are not new. In September, Getty Images banned AI-generated art over copyright concerns. Last week, Adobe Stock took the opposite route and announced submission guidelines for generative AI artwork, requiring the images to be labeled as such.

As a relatively new technology, few courts have faced questions on AI and copyright. In June, Stephen Thaler, CEO of Imagination Engines, sued the U.S. Copyright office after they denied copyright registration for a work created with AI. Thaler had listed the software as the author and himself as the owner, as is common with work for hire agreements.

Beyond the questions of copyright, the growth of AI apps like Lensa and others have raised additional concerns. Some women have claimed that the Lensa app created nudes and sensual poses. AI has long raised concerns of discrimination and beauty standards. Browsing images with the #lensa hashtag, many photos appear to be thin body types, with many women with large breasts and small hips and men with the chiseled abs of a plastic action figure. Just an observation…!