Introduction
Since the beginning of the 21st century, the rapid development of technology and the explosion of internet information technology have brought numerous advanced scientific technologies and practical tools to all of humanity, among which AI is an important product that cannot be ignored so far. The AI mentioned in this article refers to generative AI based on big data and machine learning. Kate Crawford argues that “AI is neither artificial nor intelligent” (Crawford, 2022). Although generative AI still has a significant gap from what is considered true artificial intelligence, its capability as a tool has been powerfully demonstrated in recent years in social production. Based on the principles of machine learning, art and technology have crossed traditional boundaries, giving birth to a new form of art—artworks created by generative artificial intelligence. The advancement of this technology has not only propelled a new wave of innovation and creativity but also sparked a series of complex copyright laws and ethical issues, challenging our traditional understanding of the concepts of “creation” and “creator.”
Generative AI art, such as paintings, music, or literature autonomously generated through complex algorithms, showcases the amazing capabilities of AI technology. Some of these works even possess incredible aesthetic value and creativity, prompting a reevaluation of whether machines can be considered true “artists.” However, as the number of artworks created by AI continues to grow, their legal status and the underlying copyright issues have become increasingly complex.
Generative AI and Artistic Creation
Generative AI, as a model based on big data and machine learning, has been able to produce high-quality artistic media in many fields such as visual art, conceptual art, music or literature. For example, diffusion models can synthesize high-quality images (Rombach et al., 2022), and large language models (LLMs) can produce sensible-sounding and impressive prose and verse in a wide range of contexts (Vaswani et al., 2017).
Generative AI has flowed and automated the original process of creating art, and producing artwork has become a low-barrier and extremely efficient thing to do. The impression that mirrors past instances when traditionalists viewed new technologies as threatening “art itself.”。(Epstein and Hertzmann, 2023) In fact, these moments of technological change did not indicate the “end of art,” but had much more complex effects, recasting the roles and practices of creators and shifting the aesthetics of contemporary media (Hertzmann, A., 2018). Generative AI is not a destroyer of the original art, but a new medium. Its powerful functionality frees up the original low-creative repetitive labour, allowing creators to focus more on the creation itself. As a suite of tools used by human creators, generative AI is positioned to upend many sectors of the creative industry and beyond—threatening existing jobs and labor models in the short term, while ultimately enabling new models of creative labor and reconfiguring the media ecosystem. (Epstein and Hertzmann, 2023)
The conflict between generative AI art and copyright awareness
When we focus on the painting artworks created by generative AI, an unavoidable topic is the copyright issue brought by AI works. In the previous article, we have already mentioned that the current generative AI is mainly based on big data machine learning models, and the technology of big data determines that generative AI is extremely relying on training data from people. Unlike traditional art creation, generative AI can’t really create anything out of the blue, but rather “learns” and generates artworks based on existing art media. Such a format raises new issues, such as the source of data for generative AI and the copyright of AI-generated artworks. Generative AI challenges traditional definitions of authorship, ownership, inspiration, etc., and complicates the notion of artwork creation.
The technology of big data has brought legal and ethical challenges regarding the identity of the author, prompting copyright law to explore the domain of AI-generated content. The law should balance the interests of creators and users of generative AI, respecting the copyright of original creators. Currently, some image-generating AI directly collects a massive amount of unauthorized original image data from the internet to train models, then sells AI image generation services to consumers. This infringes on the interests of the creators who are plagiarized and should be resisted and prohibited. In many online art communities, such as Pixiv, there are a vast number of creators who explicitly state that any AI is prohibited from data collection and learning from their works.
At the law level, traditional copyright law is based on the creative activity of human authors, emphasizing the originality of the work and the human involvement in the creative process. However, these definitions become fuzzy when AI becomes a tool or co-creator in the creative process. On the one hand, AI-generated works are often “created” based on existing data, which complicates determining their originality; on the other hand, if a work is created by an AI-led creation, it is difficult to define whether to grant rights to the robot or to attribute rights to the AI’s developer or user when it comes to copyright ownership. As it stands, the U.S. Copyright Office does not believe that AI art can be protected by copyright. Current copyright law only provides protections to “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind,” the USCO states. (Recker, 2022) In Australia, on the other hand, the issue of ai and copyright is a hotly debated topic that has yet to be definitively settled. Arts Law Centre of Australia is contributing to law reform and policy discussions considering the responsible use of AI, and the impact of AI on creators and copyright reform. (Heddle, 2023) The issue of AI copyright is a worldwide issue that is being discussed and needs to be addressed.
At the economic level, the rise of AI art may have an impact on the traditional art market. On the one hand, the ability of AI to produce artworks in large quantities and quickly may lead to a surge in the supply of artworks in the market, affecting the value of artworks; on the other hand, the convenience and low cost of AI creation may cause human artists to face more intense competition, affecting their income and livelihood.
At the ethical level, the use of AI to create artworks has sparked deep reflection on the attribution, identity, and value of the creative process and creative outcomes. Common concerns among artists and the public include: can AI creation be considered true art? Does the use of AI creation undermine the creativity and independence of human artists? In addition, by learning from existing artworks to create, AI relies heavily on public domain or unauthorized artworks, does this infringe on the copyright of the creators of the original artworks?
Jason Allen’s AI Art
Jason Allen used Midjourney AI to create an artwork named “Théâtre D’opéra Spatial,” and won the blue ribbon award in the digital art/digital manipulation photography category at the 2023 Colorado State Fair. Allen insisted that he played a key creative role in the creation process, including setting precise text prompts and using Adobe Photoshop for post-editing. However, the Copyright Office rejected his application for copyright of the work, reasoning that there was insufficient “actual creative control” on his part. The decision of the Copyright Office highlights the issues of defining “human participation” and “creative contribution” in evaluating the copyright of AI-assisted creative works. (Kenney, 2023)
Allen’s case represents the concerns of today’s AI art creators, namely who is the copyright owner of artworks created by generative artificial intelligence. Due to the lack of experience in dealing with such issues and comprehensive regulations, defining the role of humans in AI-generated works and how much actual control and guidance humans have in such creative processes has become a critical issue. Generative AI is still considered a tool, and the United States Copyright Office states: “If all of a work’s “traditional elements of authorship” were produced by a machine, the work lacks human authorship, and the Office will not register it. If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the Office will register the human’s contributions.” (Kenney, 2023)
Visual artists fight back against AI companies
The big data learning necessary for generative AI is also opposed by many creators, as I said earlier. There’s a group of artists who are suing AI makers, arguing that AI image generators are violating the rights of millions of artists by taking in large numbers of digital images and then producing derivative works that compete with the originals. The artists say they are not inherently opposed to AI, but they don’t want to be exploited by it. They are seeking class-action damages and a court order to stop companies from exploiting artistic works without consent. (Noveck and O’Brien, 2023)
More and more creators are becoming anxious about AI, which “learns” from their work and analyses what people like through big data and algorithms, and which not only plagiarizes their ideas, but also generates more works that cater to the market, thus squeezing out the creators’ living space. Not only will their copyrights be infringed upon, but even their jobs could be lost due to the increasingly rapid development of AI in the future. And this is happening in our society, where access to databases of generative AI is often difficult to control, and where the entire market is receiving a strong impact from AI.
As the intervention of AI complicates the process of artistic creation, relevant laws need to be adjusted and formulated as soon as possible in light of the actual situation. Placing generative AI in the cage of legal regulations is the only way to safeguard the interests of creators, AI users and society as a whole.
Conclusion
The traditional understanding of “originality” has been challenged by the capabilities of AI. Traditionally, originality has been the cornerstone of copyright law, but when AIs are able to create works that compete with those of human artists, it is important to re-examine what constitutes originality and how to evaluate the originality of a work. The application of AI technology in the arts raises a number of issues, including the legality and morality of the unauthorized use of other people’s works to train AI, the right of authorship attribution for AI-created artworks, and the impact of AI creation on the market. The challenge is to find a balance between promoting innovation and protecting individual rights and interests, and to ensure that technological advances serve social progress rather than infringing on the rights and interests of creators. The relationship between AI and copyright requires us to be open to change while maintaining respect for traditional values. Through in-depth analysis and discussion and the development of appropriate laws and regulations, we can pave the way for the application of AI in the arts, balancing its advantages and disadvantages. At the same time, we can protect the rights of artists and encourage innovation. The road ahead is full of challenges, but through co-operation and communication, we will hopefully find a balance between technological advancement and artistic creation to prosper together.
References
Crawford, Kate (2021) The Atlas of AI: Power, Politics, and the Planetary Costs of Artificial Intelligence. New Haven, CT: Yale University Press, pp. 1-21.
R. Rombach et al., Proceedings of the IEEE/CVF Conference on Computer Vision and Pattern Recognition (2022). pp. 10684–10695.
Vaswani, A., Shazeer, N., Parmar, N., Uszkoreit, J., Jones, L., Gomez, A. N., Kaiser, Ł., & Polosukhin, I. (2017). Attention is All you Need. arXiv (Cornell University), 30, 5998–6008. https://arxiv.org/pdf/1706.03762v5
Ziv Epstein, Aaron Hertzmann ,Art and the science of generative AI.Science380,1110-1111(2023).DOI:10.1126/science.adh4451
Recker, J. (2022, March 24). U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted. Smithsonian Magazine. https://www.smithsonianmag.com/smart-news/us-copyright-office-rules-ai-art-cant-be-copyrighted-180979808/
Heddle, J. (2023, August 1). Answering the AI question – Arts Law Centre of Australia. Arts Law Centre of Australia. https://www.artslaw.com.au/answering-the-ai-question-arts-law-survey-review/
Hertzmann, Arts. 7 (no. 2) (2018).
Kenney, A. (2023, September 6). Jason Allen’s AI art won the Colorado fair — but now the feds say it can’t get a copyright. Colorado Public Radio. https://www.cpr.org/2023/09/06/jason-allens-ai-art-won-colorado-fair-feds-deny-copyright-protection/
Noveck, J., & O’Brien, M. (2023, September 1). Visual artists fight back against AI companies for repurposing their work. AP News. https://apnews.com/article/artists-ai-image-generators-stable-diffusion-midjourney-7ebcb6e6ddca3f165a3065c70ce85904
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