AI-Infused Creativity: Friend or Foe to Digital Artists

Khurana and Khurana, Advocates and IP Attorneys India

  1. Introduction


In the world of advanced technology, machines have surpassed our expectations and demonstrated the capability for true creativity. A new class of artificial intelligence (AI) has emerged, enabling millions of individuals, including non-professionals, to produce breath-taking and previously unimaginable images. These AI systems have been trained on billions of human-made images, allowing them to generate outputs that possess a remarkable depth and accuracy of information. By leveraging their enigmatic and alien nature, AI picture generators can create unexpected variations of familiar objects, presenting a unique advantage in the realm of digital art. However, the emergence of AI-generated images has given rise to legal challenges and uncertainties, particularly regarding copyright protection and ownership.


  1. The Role of Artificial Intelligence in Generating Images


The emergence of AI-powered picture generators has revolutionized the creative landscape. These systems are a fusion of natural language models and deep learning neural networks. By leveraging billions of human-made images and associated text data, AI algorithms can produce accurate and coherent images based on user prompts. The output of AI-generated images often surpasses human expectations, incorporating details and artistic elements that most individuals would not have conceived.


However, the use of AI-generated images raises legal concerns. The UK government's Artificial Intelligence and Intellectual Property consultation acknowledged the lack of clarity in current approaches to computer-generated works. Questions arise regarding the originality required for copyright protection and the attribution of authorship and ownership. Furthermore, using protected images to train AI algorithms raises concerns about potential violations of third-party rights.


The originality of AI-generated images becomes a central issue when determining their eligibility for copyright protection. While AI systems learn from existing images, they generate new images that possess a unique and often unprecedented artistic expression. The enigmatic nature of AI algorithms adds complexity to the concept of authorship and ownership.


  1. Digital Art: Protecting It under the Copyright Act of 1957


Digital art can indeed be protected under the category of artistic work defined in Section 2(c) of the Copyright Act of 1957. The Act's definition of artistic work encompasses a wide range of creative expressions, including paintings, sculptures, drawings, engravings, photographs, and works of artistic craftsmanship. To qualify for protection, digital art must be an original work of creative expression, created using digital tools and technologies.


To obtain copyright protection under the Copyright Act of 1957, the digital artwork must be original and not copied from another source. The artist must demonstrate sufficient skill, labor, and judgment in the creation of the artwork. Once protected, the copyright owner is granted exclusive rights to use the work and prevent others from using it without permission. This includes the rights of reproduction, distribution, display, and the creation of derivative works.


Digital artists should take proactive steps to safeguard their work. Copyright protection can be obtained by registering the copyright with the Copyright Office in India or by affixing a copyright notice on the artwork, indicating the copyright symbol, the name of the copyright owner, and the year of creation.


In addition to copyright protection under the Copyright Act of 1957, digital artists can also consider registering their work as a design under the Designs Act of 2000. The Designs Act provides protection for artistic works that exhibit novelty and originality. By registering their digital art as a design, artists can further strengthen their intellectual property rights and establish legal protection against unauthorized use or reproduction.


  1. Digital Artists: Copyright and the Copyright Act of 1957


With the advent of digital art and the proliferation of the internet and social media, questions surrounding authorship in the digital age have become increasingly complex. Digital artists employ software and digital tools to create artworks that can be easily reproduced, distributed, and modified. This poses significant questions regarding the ownership of copyright in digital artworks and how copyright law applies to this form of artistic expression.


Madhav Kohli, a digital artist based in Gurgaon, India, provides an illustrative example of the challenges faced by digital artists. Kohli generates images of famous Indian rulers and people by inputting data regarding their physical attributes. In India, the Copyright Act of 1957 serves as the primary legislation governing copyright law. It defines copyright as a set of exclusive rights granted to the author of an original work, including reproduction, distribution, display, and the creation of derivative works.


Determining authorship in the realm of digital art can be particularly intricate. Artists employ computer software and digital tools that allow for extensive manipulation and modification of their work. According to the Copyright Act of 1957, the person who creates a digital artwork using software and digital tools is generally considered the author and holds the exclusive rights associated with copyright protection. However, there are exceptions to this rule. If a digital artist creates a work as part of their employment or as a commissioned piece, the copyright may be owned by their employer or the client, respectively. Additionally, copyright law applies not only to the final digital artwork but also to any underlying code or software used in its creation. Consequently, if a digital artist uses proprietary software, the copyright in that software may be owned by the software company. Moreover, incorporating copyrighted material, such as images or music, into digital artworks may require obtaining permission from the copyright owner.


  1. Ownership and Originality Test: Navigating the Complexities of AI-Generated Images


The issue of copyright ownership regarding AI-generated images is a complex matter dependent on various factors. Determining copyright ownership involves considering the following: the copyright laws of the country where the image was created or where the copyright holder resides, the level of human involvement in creating the image, and the terms and conditions of the AI software or platform used.


Typically, the copyright of an AI-generated image lies with the person or entity responsible for the original creative expression used to train the AI algorithm. For instance, if a photographer utilizes an AI algorithm to create an image, the photographer usually retains the copyright because they provided the original photographs used in training.


However, when an AI algorithm generates an image from scratch without relying on existing creative works, determining ownership becomes more complex. In such cases, the copyright might belong to the creator of the AI algorithm or could be considered a work of the public domain, depending on the jurisdiction and the level of creativity involved.


It's important to note that AI software or platforms may have their own terms and conditions regarding copyright ownership. Some may require users to assign copyright to the software company or platform, while others may allow users to retain ownership.


The sale of Obvious' artwork, "Portrait of Edmond de Belamy" sparked extensive debate, showcasing the growing acceptance of AI-generated art as a valid artistic form. However, questions arose concerning the role of human creativity and authorship in art creation. Critics argued that the artwork was not truly "created" by the AI system, but rather resulted from a human programmer's inputs and decisions. The sale also raised broader concerns about the impact of AI and automation on the job market and creative industries, potentially leading to job losses and economic upheaval.


In essence, the sale of "Portrait of Edmond de Belamy" ignited a lively discussion about the convergence of art, technology, and creativity, while raising crucial questions about the future of creative industries in an era of increasing automation and AI.


Further, the originality of AI-generated images lies in their transformative nature. By drawing from a vast database of human-made images, AI algorithms rearrange and reimagine visual elements to produce new and unique compositions. These AI systems possess the ability to envision details and artistic concepts that go beyond the realm of human imagination.


However, the collaborative aspect of AI-generated images blurs the lines of authorship. Human input plays a crucial role in shaping the final output of these systems. The individual who operates the AI system selects the prompts, sets the parameters, and curates the generated results. This human intervention introduces a layer of creativity and decision-making that contributes to the originality of the final image.


While the Copyright Act of 1957 does not explicitly address the originality test for AI-generated images, it is essential to recognize the creative contribution of both the AI system and the human operator. By combining the capabilities of AI technology with human guidance, these images emerge as novel expressions of art.


  1. Conclusion


The convergence of artificial intelligence and copyright law presents both challenges and opportunities for digital artists. While AI-generated images have opened new avenues for creative expression, they have also raised legal uncertainties regarding authorship, ownership, and copyright protection. Digital artists must navigate these complexities by understanding the existing legal frameworks and taking proactive measures to protect their work.


Under the Copyright Act of 1957, digital artists can claim copyright as the creators of their artworks, subject to certain exceptions. Additionally, digital art can be protected under the category of artistic work, as defined in the Act. Artists can further enhance their protection by registering their work as a design under the Designs Act of 2000.


As AI continues to advance, policymakers and legal experts must address the challenges posed by AI-generated images. Clarity is needed regarding the originality and copyright protection of AI-generated works, as well as the attribution of authorship and ownership. By addressing these issues, the intersection of artificial intelligence and copyright can foster innovation and creativity while ensuring the rights of digital artists are protected.


In conclusion, the emergence of AI-powered picture generators has revolutionized the world of digital art. Digital artists can claim copyright protection under the Copyright Act of 1957 as the creators of their artworks. Additionally, digital art can be protected under the category of artistic work, providing further legal safeguards. However, legal uncertainties surround AI-generated images, requiring policymakers and legal experts to address issues of originality, authorship, and ownership. By navigating these complexities and taking proactive steps to protect their work, digital artists can embrace the opportunities offered by artificial intelligence while safeguarding their creative endeavours.


Khurana and Khurana, Advocates and IP Attorneys

About the Firm

Khurana and Khurana, Advocates and IP Attorneys

AddressD-45, UPSIDC, Site IV, Kasna Road, Greater Noida - 201308, National Capital Region, India
Tel91-120-313 2513, 91-120-350 5740
Contact PersonTarun Khurana

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