Blog #4 Atreya Mathur: Copyright and Fair Use of AI

Refik Anadol: Unsupervised

AI and AI generated art is taking over the art industry and raising many concerns and questions. Atreya Mathur, the Director of Legal Research at Center for Art Law talked to us about copyright and fair use of AI. 

An incident with David Slater, the Naruto Case, sparked questions. David Slater, a photographer, was sued for copyright infringement when he created a book of Naruto, a monkey, who took a picture of themself and were claiming that Naruto is the owner of that photo. The copyright office then stated that “No copyright is awarded to non-humans” - so what about computer generated art? Who owns the right of the artwork when created on a computer?


In today’s AI programs, such as Dalle 2, the Terms of Use states that the prompt input by user gets the right to the art property and liability. If anyone tries to sue any artwork created by AI, they will have to sue the software company. So in this case, the person can create AI art and reproduce it for profit. Copyright also does not protect an idea. Only works expressed as a concept note or drawing.


The art and legal community says artists are frustrated that their art is being used without consent. An artist’s name could be entered as a prompt and art similar to their style will be generated. There are also concerns about storage and privacy issues. Especially with face data, many of these softwares provide ways for users to upload their own photos. That photo is now being used as data to create other images. There are also some concerns that these programs may lead to a monopoly.


Improvements are being made with these AI programs. Recently, Dalle 3 updated their software to where it is no longer able to create artwork with a living person’s name. There is an option to opt in or opt out for artists. When opting in, artists are allowing the software to use their name and artwork. When opting out, their name and artwork will no longer be utilized in their generation. Although, any data already in this system before this update will still be in use.


So what are exclusive rights artists have over their work?


Artists are able to make copies of the work, prepare derived work, distribute copies of the work to the public, and display their work publicly. It is considered infringement when taking another person’s work, reposting another person’s work. Taking Google for example, Google has many images and resources on their site but is it considered infringement? In Google’s instance, it does not copy the image, google copies the URL and text so it is not considered infringement. This raises the concern of loopholes.


Regardless, AI generated art is here to stay. In the future, we are likely to see softwares updating terms of use and be more open and transparent. Copyright offices establishing more guidelines, like the opt in, opt out provisions. Encouragement for artists to register their work on a block chain and utilize digital signatures to track their work and use it as authentication. 

Tools like Nightshade have been developed to poison data of an image to fight against AI. Resources such as, Have I Been Trained, gives people an opportunity to research if an artwork has been infringed by AI.


Currently trademarks are protected in AI softwares. For example, an AI prompt “Gucci” was tested but no name or distinct works would be created meaning it has the ability to handle protecting trademarks. 


Artists are creative and will find a way to utilize this new tool more in a fair and ethical way. Artist, Refik Anadol held an exhibit named, Unsupervised at MoMA, using AI to create a piece that was ever changing. 


Human creativity is still needed in creating new works of art. It is important to know that AI uses work that is already existing and it is a whole other skill to use AI. 


There are still uncertainties and questions being asked about AI and the future of AI in our lives, especially as artists. If people respect and understand the use of AI, I believe people will utilize this as an additional tool to improve and spark more creativity.

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