When Law and Technology Collide, Who Owns the IP?

The thing that fascinates me most about AI-generated art, as an artist and attorney, is the copyright aspect. A "copyright" is a legal protection granted to people who author a creative work. The key word here is "people." In other words, when a human being uses their creativity to birth some expressive work into existence—be it a piece of music, a poem, a photo, or a drawing on a napkin—a copyright pops into existence and binds to the author. It's sort of like when a goose hatches and imprints on the first thing it sees as being its mom.

Once a copyright binds to an author, it can become legally complicated to separate the two, requiring additional contracts and legalese where the copyrighted work is assigned to a new party in exchange for some sort of consideration (e.g., dollah dollah bills, yo).

Companies avoid this issue by executing "work for hire" contracts, which make the creator/employee/contractor a creative surrogate for the employer. This way, when the copyright hatches, it binds to the employer instead of the person who actually did the work. This is how Disney employs thousands of artists while maintaining copyright ownership on the things they create.

So all of that is generally how copyrights work... or used to work. Because now we live in the time of A.I. art, with software like Dall-E (which I used to create the image attached to this post, with the prompt: "a robot standing on a grassy hill painting canvas while looking out on a valley, watercolor"), or the more advanced "Midjourney" (which is causing quite the controversy these days by winning local art competitions 46 46 46).

These pieces of software take in prompts and use sophisticated algorithms to generate completely unique pieces of art. Art that, to be honest, makes me a bit jealous as a meat-based artist.

The issue here, when it comes to copyright law, is that the images aren't being created by a human — they are being created by computers. Computers are not recognized as having the ability to generate copyrighted work. They can be used by meat-based, human artists to create copyright works, but when they independently generate visuals based on prompts it gets a bit legally blurry.

As a result, we're living in a world where art is born into existence without a copyright owner and, instead, is merely connected through licensing agreements. Take MidJourney, for example. When a human uses the software to generate art, they agree to its Terms of Service. In the Terms of Service, they agree to let MidJourney have a license to reuse their prompt and any images that result from it, and MidJourney agrees to let the creator have a license to the results of its software, but what happens if someone decides to pirate the image?

I honestly don't know. An unauthorized, derivative work would generally be policed by the copyright owner. But here... there is arguably no copyright owner.

What a time to be alive. What are your thoughts?