Who Owns AI-Generated Works?

As artificial intelligence (“AI”) becomes an ever more significant part of everyone’s life, it is already raising important legal questions, challenging concepts that have not been questioned in many years. The ownership of AI-generated output poses special questions, as copyright has traditionally belonged to the creator. However, some courts have already ruled that copyright must belong to a human author, leaving the output from an AI tool unprotected by copyright. While this is still an emerging field, some companies, such as OpenAI, have at least taken steps to clarify that their users, rather than the companies themselves, retain whatever ownership rights may exist for the generated work.

Even though a number of AI companies are allowing users to retain any ownership to the output, these decisions may not provide any meaningful legal benefit to their users. There have been multiple rulings by the copyright office that have denied copyright to creators who used AI in their art. The current consensus from the copyright office appears to be that an author can copyright any parts of an AI-generated work that they modify. Any parts that remain untouched by humans cannot have a copyright.

Despite the fact that humans are generally the ones responsible for creating the prompt that causes AI to generate an image or text, the current distinction is in who, or what, is responsible for making the decision about the output. Photos belong to the photographer because the photographer is making decisions about the creative elements of the photo. For AI, the distinction is unclear. While the prompt is an important part of the final product, so is the training choices and programming that went into the AI, and the AI’s iterative revisions afterwards. The complex balance of inputs from the programmers, users, and the AI itself make it difficult to distinguish who can, or should be able to, claim creative direction of the final product.

An additional consideration when using AI is that of copyright infringement. AI has been trained on many existing works of media and fiction, which it will often use as the pattern for future output. While this often results in a new creation, there is always the chance the output is derivative of another writer or artist’s protected work. The fact that AI created the new work might seem like a good defense, but the courts may not agree, leaving an unsuspecting AI user stuck with an expensive claim for copyright violation.

Overall, it is important to keep up with both the terms of service and major news regarding copyright and AI. As of right now, you can only own what you modify from an AI’s output, but that could quickly change. AI is a great tool for spurring creativity, but for the time being, users should be aware that their creations might not really belong to them.

This McNeelyLaw LLP publication should not be construed as legal advice or legal opinion of any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.