More Thoughts On AI Art Legalities

Okay, let’s be sure to start with these points:

*I am not a lawyer. This is not legal advice.

*I have not yet used AI-generated art for any commercial purpose other than one image on this blog for editorial example, but I am currently of the opinion that I ethically, morally, and practically can in some circumstances.

*I have already written one article on AI-generated art, but the question is getting a lot of attention, so I may well post more as new thoughts get proposed and articles written and (if it ever happens) legal cases settled. So far, that still covers my current position on the issues.

But, it’s absolutely worth looking at other people’s thoughts.

Here’s another article on the legal questions of commercially using AI-generated art, by Lauren Panepinto. It’s extremely important to read the notes after the article, since she corrects a few items herself. Also, her core assumption that if something has no copyright, you can’t use it in a commercial fashion is, IMHO, entirely 100% baseless. There is no law anywhere that says art without copyright can’t be used commercially.

For example, there is a photo a macaque took of itself, and a legal case (Naruto v. David Slater et al.) determined that image was created 100% without human intervention, and thus never had any copyright. However, that didn’t mean no one use it commercially (and, in fact, the case was brought because someone was using it commercially and someone else wanted to stop them from doing so). The commercial concern using the photo was not directed to stop. The ruling of the case was, in fact, that they could do so, and didn’t have to pay anyone for the right.

Art having no copyright (for whatever reason) means EVERYONE can use it commercially — you can’t prevent someone else from using it too. And, of course, if you get an AI image and yourself make changes to it, even that stops being an issue. (Though I personally believe it will be determined that using prompts you input of your own creativity into an AI to generate images is going to be seen as the same as using a Spirograph — the end result is created by human input, and thus copyrightable.)

Now the question of whether art that builds algorithms from online image archives is considered derivative, that *would* cause the art to be unusable in commercial context. However, as Panepinto notes, it seems likely this will go the way of similar legal claims against google Images which, so far, has not had lost any case claiming they must pay for archiving images Google doesn’t own the copyright to. (And yes, I mean it’s likely to go that way for both ethical and legal reasons — as long as an AI isn’t making collages using bits of other art, but instead looing at online images to create a process by which it can draw images from prompts without using those assets, it is to me no different than a living artist looking at and learning from existing art, which artists do all the time.)

Also, there’s an article going around people are claiming means AI-generated art cannot be copyrighted by anyone. That’s not what that legal case determined. The applicant in that case claimed the art had been created by an AI 100% autonomously (with no human input at all), and wanted the AI to be legally acknowledged as the creator, claiming he would then own the copyright because he owned the machine. The ruling so far is that if the AI created the image “without any human help,” then no copyright does or can exist for the image.

The case did not look at what level of human help is needed for something to qualify for copyright protection, since that was not at issue. I suspect entering prompts and selecting images to get variations on will be determined to be enough for the prompt-issuer to receive copyright. But even if that’s not how that goes, the art can still legally be used commercially, you just couldn’t stop someone else from doing so.

This is a complex and developing area of law and ethics, and while I know where I come down on the issue so far, I’m studying and considering as new arguments and discussions come out, and not only has it not yet reduced my level of ongoing financial patronage to living human artists, I do not foresee it ever doing so as I believe there will always be things living artists are better at, and thus it is in my own best interest to keep the community of them paid and healthy.

Speaking of Being a Patron to Maintain a Healthy Industry of Creatives…
I have a Patreon. It helps me carve out the time needed to create these blog posts, and is a great way to let me know what kind of content you enjoy. If you’d like to see more essays on industry issues, or Pathfinder 1st or 2nd edition, 5e, or Starfinder content (or more rules for other game systems, fiction, storytime posts, game design articles, worldbuilding tips, whatever!), try joining for just a few bucks and month and letting me know!

If you prefer, you can drop a cup of support in my Ko-Fi. It’s like buying me a cup of coffee, but more convenient!

About okcstephens

Owen K.C. Stephens Owen Kirker Clifford Stephens is the Starfinder Design Lead for Paizo Publishing, the Freeport and Pathfinder RPG developer for Green Ronin, a developer for Rite Publishing, and the publisher and lead genius of Rogue Genius Games. Owen has written game material for numerous other companies, including Wizards of the Coast, Kobold Press, White Wolf, Steve Jackson Games and Upper Deck. He also consults, freelances, and in the off season, sleeps.

Posted on August 16, 2022, in Business of Games, Musings and tagged , , , . Bookmark the permalink. Leave a comment.

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