Can AI created images be used safely without copyright hassles?
I don't know the answer but I have intelligent guesses
Yesterday, I wrote about how I used DallE3 for an article I wrote for my other newsletter. Here is on example illustration:
This of course begs the question1 in the title: are these illustrations legal to use or do they violate copyright/intellectual property laws?
I don’t know the answer to this question but here’s my understanding. (If you’re an expert in this area or you know an expert in this area who can give some good answers, please get in touch with me or leave a comment below, and I’ll edit this post and send out an update).
Legally…
The terms of service are silent on this question. Microsoft, in its terms of service, has clearly mentioned that: “you may use Creations outside of the Online Services for any legal personal, non-commercial purpose.” Unfortunately, the ToS does not mention anything about commercial use, which means that to understand the rules around commercial use, we need to rely on the default rules according to the law.
By default, you can’t use the image without permission of the creator. The default rule in copyright law is that when there is no explicit copyright notice, then all rights are reserved by the copyright owner, and anyone else is not allowed to use it in any form whatsoever without the explicit consent of the copyright owner (with some exceptions, called “fair use”, for parody, news, research etc, which is a complex issue that I will ignore for now—let’s assume that putting this image in this newsletter and in my video does not qualify as fair use).
So now, to use this image, I have to contact the copyright owner and get their permission. But, who owns the copyright for this image? Normally whoever created a work of art is the automatic owner of the copyright. Most people are under the misconception that copyright ownership is only established if you register a copyright with the proper authorities. This is not true: as soon as you create something, you own all copyrights to it, even if you haven’t registered it2.
But, who is the actual creator of this image? This is a bit of a grey area, but let’s understand the arguments.
Bing is a tool, not the creator of this image. Normally, if I use a tool, like for example, Figma, to create an image, I am the creator of that image, and not Figma. In the case of an AI image creator like Bing Image Creator, the situation is a little trickier, because I did not really do a lot of work to create the image—I just input a text prompt. So am I the creator or is Bing? At this point, the answer is not clear, but it is likely that courts will rule that I am the image creator and not Bing.
What about the original artists of the images in the training data? There is one additional wrinkle here: Bing (actually OpenAI which created the underlying Dall-E technology) used a lot of images from all over the world as training data for the AI. And, it can be argued that 90% of the creativity in the image actually comes from the training data. Also remember, that an artist owns the copyright to any work derived from their art (or more accurately is a joint owner with the deriving artist)—which is why Disney can (and does) sue daycare centres with Mickey Mouse painted on their walls even though nobody from Disney painted those. So really, the artists of the original images are joint owners of the copyright? Well, we don’t know. There are court cases in progress currently over this issue.
Using the style of a real, recent artist is a bad idea. If you use an AI tool to create an image in the style of a recent artist like Mario Miranda, and if the image really turned out the be in Mario’s style (clearly not the case below!), then Mario’s estate could probably sue me for copyright violation. There’s a good chance that courts will rule in favour of the artist in such cases.
But, if the image you’ve created is in a generic style, I would say, for now, that you are the owner of the copyright.
Practically…
But, as you know, there is a big difference between what is legally true and what will happen practically in real life. If someone can sue you, or if they can get your post/video removed because of perceived copyright violation, that’s trouble enough, because who wants that hassle, right?
So the question is can your post get flagged for copyright violation?
Automated tools can’t reliably detect AI-generated images. Will YouTube automatically detect the use of AI-generated images in videos and take them down proactively? Will Substack/Medium/others do the same? Very unlikely. There are no reliable tools to detect whether a piece of content is generated by AI. There are lots of tools that claim to do so, but the false positive and false negative rates of these tools are so bad that they are dangerous and can ruin people unnecessarily. I don’t think any platform can use automated tools to take down posts/videos containing AI-generated images. (Correct me if I’m wrong, people.)
Can someone sue you or flag your post/video for a violation?
It is not clear who will do this.
Bing (Microsoft) and DallE (OpenAI) have no incentive to do so. In fact, they would love for their output to be used by everyone in the world. Increases their revenues.
If you’ve created a generic image which does not copy any artist’s style, then there’s no specific artist who’ll want to sue you and flag your content, so I think you’re safe.
Final recommendation
I think it is safe to use AI-generated images for commercial purposes.
But, I might be wrong: I am not a lawyer, and these issues are so new and the existing laws are so not ready for the age of AI that who knows what will happen. So, this is not legal advice; don’t sue me.
By the way, I hear that Midjourney is the best AI image creation platform, but it is paid-only and I haven’t bothered to get an account. Dall-E2, which is what you get with OpenAI (the creators of ChatGPT, and the pioneers in the field) is really not very good and I stopped using it after some experimentation. However, Dall-E3, the latest version seems quite good and is available for free from Bing Image Creator. All the images in this post are from Bing Image Creator.
All of you complaining that this is not the correct meaning of “begged the question”, sit down. I know what the phrase used to mean. But you guys, who’re still stuck on the old meaning, and who tend to get all grammar-nazi with others using it “wrong”, need to understand that meanings of words and phrases do not work that way. A word or phrase means whatever people mean when they’re using it, as long as others understand it. Enough people use “begs the question” to mean “raises the question” that it has now become an acceptable meaning. Check a dictionary if you don’t believe me.
Registering the copyright might make it easier to win a court case if there is a dispute, but it is strictly not required, as long as you can prove that you created it and did not copy from anyone else.