On Feb. 21, 2023 the U.S Copyright Office decided that AI image generators are not entitled to copyright protection, but do the images they produce amount to copyright infringement? According to a lawsuit initiated by three artists in the United States, they do.

AI image generators are artificial intelligence tools that can produce images based on word prompts in a matter of seconds. But along with high-definition images, they are also generating significant concerns for visual artists who fear that their jobs are being replaced. After all, why commission a professional to create art for you when you can expedite the process for free using your own personal computer? Coupled with copyright infringement concerns arising from the fact that the programs are "trained" on human-made art scraped from the web, it is no wonder that visual artists are starting to push back. Before we get into the lawsuit, let's start with how they work and why the images are not entitled to copyright protection.

Copyright protection

AI image generators use machine learning in order to generate images they have never viewed before. For example, a user can input "pink horse on roller skates" and the AI image generator will produce exactly that despite never actually having been shown a pink roller skating horse.

How does it work, you ask? Well, the very (very) simplified version is this: AI image generators are built on models that first have to be "trained" (this process is referred to as "machine learning"). In order to do so, hundreds of millions (often billions) of URLs are linked to images that have been scraped from across the internet. The images along with a brief text description are then "fed" to the AI model in order to develop a dataset. Picture a teacher standing in front of a kindergarten class pointing at an eraser, a piece of bubble gum and cotton candy, each time saying "pink." Eventually, the students are able to recognize this characteristic. This explains how AI image generators are able to produce images that are "in the style of" known artists. Eventually, after being shown an artist's work enough times, the tool will understand the defining characteristics and will be able to produce a new image that implements those characteristics.

Despite the originality of the artwork, the U.S. Copyright Office has taken the position that AI generated images themselves are not entitled to copyright protection, as they are not the product of human authorship and therefore do not meet the definition of original. However, in a letter dated February 21, 2023, the Office further clarified that it will allow registrations of work made by humans that incorporate AI-produced images so long as the work is otherwise copyrightable. Although the laws in Canada are less clear, it seems as though we have taken a similar approach and have required that at least one author of a work be human. In Canada, "original work" is defined as work that is the product of a creator's "skill and judgement." As such, some have argued that AI-generated works are an original product of human authorship because inputting text based prompts to the AI image generator is an exercise in skill and judgement. Whether or not this argument would be accepted by the Canadian courts has given rise in the legal community to a call for clarity in the Copyright Act.

Copyright Infringement (and other rights concerns)

Earlier this year in the United States, three visual artists commenced a class-action lawsuit for copyright infringement against the producers of three prominent AI image-generating programs: Stability AI. DeviantArt, and Midjourney. All three of the defendants' image generators use an AI model called Stble Diffusion.

The basis of the artists' copyright infringement allegations stem from the training technique discussed above. According to the plaintiffs, the use of their copyright protected images in the training of Stable Diffusion amounts to copyright infringement.

In both Canada and the United States, it is unlawful to reproduce a copyright-protected work without a rights holder's permission or a license unless "fair use" (in the United States) or "fair dealing" (in Canada) principles apply. If this claim were to be brought to Canada, we suspect that the fair dealing exception would apply to the use of copyrighted materials for the purpose of "research." Since this term has been given a wide interpretation by the Supreme Court of Canada, some have argued that the use of images to train AI models would fall under this protected purpose. However, whether or not the courts would agree remains to be seen.

In addition to copyright infringement claims, the plaintiffs have also alleged a violation of artists' right of publicity. Publicity rights (referred to in Canada as personality rights) generally refer to an individual's exclusive right to control their persona and exploit their personality for commercial gain. "Personality" includes a number of different identifiable features such as a name. In Canada, these rights are protected through the tort of misappropriation of personality and relevant provincial privacy legislation. A successful misappropriation of personality claim requires that the subject be clearly identifiable and that the exploitation of the subject's personality be for a commercial purpose.[1]

According to the plaintiffs, the defendants advertised that Stable Diffusion could produce images in the "style of" named artists thereby profiting off their distinct artistic identities which are uniquely associated with their names. Although the plaintiff's claim appears on its face to meet the test for tort of misappropriation of personality, the scope of this tort is far from well-defined due to the scarce number of cases that have discussed this type of claim.

Venturing into the future

Despite uncertainty surrounding Stable Diffusion's future, the time, cost and energy saving benefits of AI image generators point towards the likelihood that they are here to stay. Whether being used to produce high-quality images or to free an artist from technical requirements – letting them focus more on imagination and creation – AI generators will continue to present opportunities for innovation and growth, especially as the metaverse continues to expand. However, this continued growth in technology is also likely to cause the expansion of legal issues surrounding AI technology and specifically image generators. As such, it is important to seek legal advice prior to using an image generator for commercial purposes. Furthermore, the differences in copyright law between Canada and the United States make it paramount that artists considering recourse against AI image generators within Canada's jurisdiction should consider seeking legal advice before proceeding.

[1] (1973), 13 CPR (2d) 28 (ON CA)