Generative AI will be a huge boon for the public domain – unless copyright blocks it

A year ago, I noted that many of Walled Culture’s illustrations were being produced using generative AI. During that time, AI has developed rapidly. For example, in the field of images, OpenAI has introduced DALL-E 3 in ChatGPT:

When prompted with an idea, ChatGPT will automatically generate tailored, detailed prompts for DALL·E 3 that bring your idea to life. If you like a particular image, but it’s not quite right, you can ask ChatGPT to make tweaks with just a few words.

Ars Technica has written a good intro to the new DALL-E 3, describing it as “a wake-up call for visual artists” in terms of its advanced capabilities. The article naturally touches on the current situation regarding copyright for these creations:

In the United States, purely AI-generated art cannot currently be copyrighted and exists in the public domain. It’s not cut and dried, though, because the US Copyright Office has supported the idea of allowing copyright protection for AI-generated artwork that has been appreciably altered by humans or incorporated into a larger work.

The article goes to explore an interesting aspect of that situation:

there’s suddenly a huge new pool of public domain media to work with, and it’s often “open source”—as in, many people share the prompts and recipes used to create the artworks so that others can replicate and build on them. That spirit of sharing has been behind the popularity of the Midjourney community on Discord, for example, where people typically freely see each other’s prompts.

When several mesmerizing AI-generated spiral images went viral in September, the AI art community on Reddit quickly built off of the trend since the originator detailed his workflow publicly. People created their own variations and simplified the tools used in creating the optical illusions. It was a good example of what the future of an “open source creative media” or “open source generative media” landscape might look like (to play with a few terms).

There are two important points there. First, that the current, admittedly tentative, status of generative AI creations as being outside the copyright system means that many of them, perhaps most, are available for anyone to use in any way. Generative AI could drive a massive expansion of the public domain, acting as a welcome antidote to constant attempts to enclose the public domain by re-imposing copyright on older works – for example, as attempted by galleries and museums.

The second point is that without the shackles of copyright, these creations can form the basis of collaborative works among artists willing to embrace that approach, and to work with this new technology in new ways. That’s a really exciting possibility that has been hard to implement without recourse to legal approaches like Creative Commons. Although the intention there is laudable, most people don’t really want to worry about the finer points of licensing – not least out of fear that they might get it wrong, and be sued by the famously litigious copyright industry.

A situation in which generative AI creations are unequivocally in the public domain could unleash a flood of pent-up creativity. Unfortunately, as the Ars Technica article rightly points out, the status of AI generated artworks is already slightly unclear. We can expect the copyright world to push hard to exploit that opening, and to demand that everything created by computers should be locked down under copyright for decades, just as human inspiration generally is from the moment it is in a fixed form. Artists should enjoy this new freedom to explore and build on generative AI images while they can – it may not last.

Featured image created with Stable Diffusion.

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