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Ethical and Copyright Considerations of AI-Generated Images In Photography

Note: Aiello Studios does not earn revenue from links in this post.

As I discussed in the first installment of this blog series, as AI technology continues to evolve, it has given rise to a new form of creativity – AI-generated images. More specifically, I am referring to fine-art photographers for generating image elements to blend into and combine with traditional camera-made photos. While these images have advantages, they also raise serious ethical and copyright concerns. In this post, I will delve into the moral perspective of AI-generated images and explore issues related to authenticity, ownership, and the potential for misuse. Can AI indeed be an independent creator? Should there be limits on what artists can create with it and still call their own? Join us as we explore these essential questions and discuss the implications of AI-generated images in fine art photography, not to mention our society and culture.

Concept image on ethical considerations of AI in photography
Concept image on ethical considerations of AI in photography. Made in Midjourney.

The Ethical Landscape of AI-Generated Images

It has become clear that the ethical landscape of AI-generated images is complex and multifaceted. It encompasses copyright infringement, ownership, authorship, and the potential for misuse. One of the main concerns is the possible infringement of copyright protection for original artworks. Meaning the artworks used to train the AI systems. As AI algorithms learn from vast datasets, there is a risk that these algorithms might generate images that resemble or even contain copyrighted material without proper authorization.

Companies like Google, with its generative AI tools such as Bard, have faced scrutiny over the use of copyrighted imagery. See "Google hit with lawsuit alleging it stole data from millions of users to train its AI tools."

This area appears unsettled as of yet. Determining the legality of using the source material used by AI systems requires consideration of the Fair Use doctrine, which offers guidelines for determining the permissible use of copyrighted works. Additional reading: "Generative Artificial Intelligence and Copyright Law" from the Congressional Research Service. This argument is between artists whose work is in the training datasets and AI systems that use them. It does not appear to impact the artists creating AI-generated images. Which begs the next question, "who owns the AI-generated image?"

AI-Generated Living Rm with Aiello Ghost Tree on wall.
AI-generated Living Rm with Aiello Ghost Tree on wall.

Authenticity and Ownership Issues - Can AI Be An Independent Creator?

Determining the authenticity and ownership of AI-generated images has presented a complex challenge in recent years. One of the critical questions that arise is who holds the copyright to these images. Is it the programmer, the AI system, the training data used, or the user writing the prompts to generate the images?

According to the U.S. Copyright Office, AI cannot be considered the author of a work under current law because AI generates material autonomously without human involvement. (See "Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence" - March 2023). So that's clear.

Additionally, the U.S. Copyright Office's determination was upheld by Judge Beryl A. Howell of the D.C. U.S. District Court as recently as August 18, 2023.

For now, the answer is the artist, meaning the user writing the prompts, can copyright the image. But wait, there are still conditions that must met.

The artist may copyright the work if one of two conditions exists:

  1. If the AI-generated elements are selected or modified "in a sufficiently creative way."

  2. The artist modifies the AI-generated elements "to such a degree that the modifications meet the standard for copyright protection."

I believe I understand those conditions. I certainly can apply my own standards to them. But, admittedly, both of these conditions can be subject to interpretation. And that's where the problem lies. As AI continues to evolve, artists on all sides of the equation need to know where they stand. Ethically speaking, there is a lot of gray area between the black and white extremes. It is, therefore, crucial for legal frameworks and ethical guidelines to keep pace with these advancements. Hence, artists know what they can count on and to ensure the responsible and ethical use of generative AI tools.

Generated pastel background.
Generated "painted" background. Made in Midjourney.

Potential Misuses of AI In Photography

And then there's this. Deepfakes. While it hopefully does not apply to fine-art photographers and readers of this blog, I include it here only because it greatly concerns society overall. Deepfakes pose significant risks in today's digital landscape. They have the potential to perpetuate the dissemination of false information, reinforce social biases, and even foster political unrest, not to mention the potential harm they can cause to individuals and their reputations.

Addressing the potential misuse of AI-generated images requires a multi-faceted approach encompassing technology, education, and policy. Tech companies like Google are investing in developing algorithms and tools to detect and combat deepfakes. See "Is It 'Real' or AI? Google Helps Fight Deepfakes". Education is crucial in raising awareness among the general public about AI-generated images' existence and potential dangers. As noted above, policy interventions are necessary to regulate the use of AI tools and protect individuals from copyright infringement and other forms of harm.

tips to avoid copyright infringement when using AI image generators

To the degree possible:

  • Use prompts to generate images that are original and creative by avoiding references to specific artists.

  • Avoid using AI image generators to generate images that are substantially similar to existing copyrighted works.

  • Make sure that the training data that is used to train the AI image generator does not include any copyrighted images.

  • If you are unsure whether or not an image is copyrighted, it is best to err on the side of caution and not use it.

It is also important to be aware of the copyright laws in your jurisdiction. The copyright laws in different countries may vary, so it is important to consult with a copyright attorney if you have any questions.

My Conclusion

AI-generated images can potentially revolutionize the art world but with complex ethical and copyright considerations. By striking a balance between the benefits of AI-generated art, protecting intellectual property rights, and promoting collaboration between human artists and AI systems, we can explore the exciting possibilities at the intersection of AI and art while responsibly navigating the ethical landscape.

I will continue to explore the impact of AI-generated images on fine-art photography in upcoming posts, including ways to help keep your work out of the training datasets.

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