Numerous media outlets have emphasized that AI-generated artwork cannot be copyrighted, given that machines produce them, and courts in the United States do not recognize non-human authorship as copyrightable. While this assertion holds true, it overlooks the potential for humans to employ AI as an additional instrument in their creative repertoire.
For your artwork to be eligible for copyright, it must fulfill two primary criteria:
- It must exist in a tangible or digital form, not merely as a concept, and
- It needs to be your own distinctive creation that demonstrates a certain degree of creativity.
While the former is self-evident, establishing the latter in court can prove to be a formidable challenge.
The most relevant legal precedent for registering intellectual property (IP) pertaining to machine-generated art is the case of Kristina Kashtanova, who sought copyright registration for her graphic novel, Zarya of the Dawn. Although her authorship of the individual images was rescinded, her rights to the overall composition and the accompanying text remained intact.
According to the letter released by the US Copyright Office, it seems that obtaining protection is feasible after all.
There is a legal pathway that enables artwork created with the assistance of AI to be eligible for copyright protection. The key lies in demonstrating a significant degree of creative control and establishing that the machine merely served as a supplementary tool to actualize your vision.
In light of the advancements in art generators, monetizing AI art has become accessible to virtually anyone, regardless of whether you are a teenager or a grandparent. This comprehensive guide will elucidate how to secure copyright protection for AI-assisted creations, including:
- children’s books,
- comics and graphic novels,
- poetry books,
- and much more.
Simply adhere to the general guidelines provided in this article in order to ensure that you’re work is protected.
Recognize Applicable Copyright Laws
First, you need to familiarize yourself with the copyright laws in the country where you intend to register your work.
As soon as a human creates an artwork, whether by hand or with the aid of a computer, it automatically receives copyright protection. For many, this notion is enough. Why?
You can make use of AI-generated works even without copyright registration, which is why the vast majority of AI artists choose to forgo the process. Before you decide to go this route, you need to assess whether the time and cost outweigh the benefits.
Copyright registration is best suited for individuals who seek to ensure comprehensive protection. It is the best way to safeguard yourself from lawsuits regarding the use of generative AI artworks.
Another distinction between copyright protection and copyright registration lies in the fact that the latter grants you the right to pursue legal action for infringement and qualify for compensation in the form of statutory damages and attorney fees.
While in the US, only humans can claim ownership of copyrighted works, the UK recognizes AI as eligible authors. Despite these notable differences, the copyright laws of both countries are relevant to you, irrespective of your location. This is because they possess the largest art markets in the world (excluding China), and a majority of artists whose works have been used as training data for AI models hail from these nations.
Before delving into the extent of protection you desire, contemplate the nature of the art you plan to create. What level of protection do you require? Your answer will undoubtedly impact your creative process and the degree of difficulty involved.
A woman selling print-on-demand products doesn’t need the same level of protection as someone selling a children’s book. In most instances, copyright registration may not even be necessary unless you anticipate that others could easily profit from infringing upon your work.
Plan Out Your Creative Process
There are two distinct approaches you can adopt: either accept that only the compilation is copyrighted or strive to secure copyright for nearly every aspect of your work. For the latter, the work must demonstrate a certain level of creativity and be verifiably the product of your imagination.
To be clear, merely inputting text or image prompts into software like Midjourney is insufficient for the resulting images to be copyrightable. Kashtanova referred to her prompts as “the core creative input” for her images, leading the court to reject her claim.
The challenge with most AI art generators, such as Dall-E and MJ, lies in their inherent unpredictability and the limited “control” users have over the final output. Nevertheless, there are hybrid tools and techniques that offer greater flexibility and control over the resulting image, including:
- AI-assisted drawing tools (such as Photoshop and similar tools)
- Inpainting/outpainting with original or public domain images
- Image-to-image (ControlNet)
Among these options, Stable Diffusion’s ControlNet extension delivers the most control over the output. It has a steeper learning curve than what you’re probably used to, but once you get the hang of it, you’ll find that it’s the most amazing AI art generator out there.
Since AI cannot be the primary creator of an original work eligible for copyright protection, you must establish yourself as the mastermind, with AI serving merely as a tool in your process. To demonstrate that the art is conceived in your mind, the tool you employ must not produce overly unpredictable results.
However, this does not imply that generating AI art via prompts entirely disqualifies you from protection for your work. Your arrangement and composition will still be safeguarded, albeit not the individual images. Additionally, it is worth noting that the UK acknowledges AI as authors of copyrighted works.
Document Your Creative Process
Documenting your process serves a dual purpose: not only does it prepare you for potential legal disputes, but it also demonstrates to the world that you are not simply capitalizing on the efforts of traditional artists. This approach could help alleviate the typical backlash associated with monetizing AI art. However, when sharing your process, be mindful of the level of detail you disclose, particularly if you intend to make your process public.
It is crucial not to reveal any trade secrets that could jeopardize your competitive edge. Instead, consider sharing just enough information for people and the legal system to grasp the essence of your creative process.
Once your work is done, you may publish it online. You should be able to utilize your AI art for commercial purposes.
Register for Copyright (Optional)
After publishing your work, you have the choice to either register it for copyright or simply leave it as is. Copyright laws in both the US and the UK are designed to protect the IP rights of creators, including those who utilize AI. These legal systems exhibit similarities in their approach, with one notable distinction.
A shared feature between the two jurisdictions is the automatic protection conferred upon eligible works. In both countries, creators are not required to apply or pay a fee to secure copyright protection for their projects. However, the US does offer a voluntary registration system through the Copyright Office, which affords the legal advantages previously discussed.
In many countries, you can conveniently apply for copyright registration online. If you are based in the US, create an account on copyright.gov and submit the necessary information. Your documentation will prove invaluable at this stage, as it will help convince the court of your work’s originality.
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