Judgment Day for Artists: DALL . E and the Law

DALL · E is the hot new artist on the scene. Known for its eclectic style and prolific output, DALL · E is making waves in the cut-throat art world.

However, DALL · E is no mere mortal, but rather an artificial intelligence (AI) program designed to create artistic works on command. Unbeholden to the meekness of flesh, it can receive prompts and produce its own artistic interpretations in minutes.

Users can submit written prompts to DALL · E, which will then scour the internet for inspiration before producing its masterpiece. Written prompts may range from the ordinary “waterfall painted in the style of van Gogh” through to the silly “CCTV footage of Yoda stealing from a liquor store”. There are various models of DALL · E available to the public and its potential to revolutionise art is obvious.

The growth in AI generated art raises questions with respect to Australian copyright law.

Copyright implications

Copyright subsists in artistic works authored by a qualified person.

A person does not include AI.

The owner of copyright in an artistic work has the exclusive right to (among others):

  1. reproduce the work in a material form;
  2. publish the work;
  3. communicate the work to the public; and
  4. make an adaptation of the work.

DALL . E is not a qualified person; accordingly, it cannot author (or own) works in which copyright subsists. Further, it is unlikely that the end user prompting DALL . E will qualify as an author, given DALL . E is ultimately responsible for the artistic expression of the user’s prompt.

The Copyright Act 1968 (Cth) also does not address whether the owner of DALL . E will own the copyright subsisting in its art. Indeed, someone will own the copyright in DALL . E’s source code, but this is a separate matter to DALL . E’s artistic output.

The current state of copyright law in Australia leaves DALL . E’s artistic expression in the doldrums. However, reform in this area might not be as simple as it appears.

One option is for the copyright in AI art to vest in the owner or controller of the AI itself. However, as AI can generate art at a rapid pace (and at all hours of the day), human artists may find it difficult to create original art that does not infringe on a pre-existing AI artwork.

This also raises questions where the AI itself infringes on pre-existing artwork. DALL . E is programmed to seek inspiration from the internet to understand a user’s prompt. For example, DALL . E will learn how to draw Darth Vader by analysing images of him existing online. Therefore, it is likely that DALL . E may end up infringing upon an existing artwork. As an AI does not have legal personality, it cannot be sued for copyright infringement. However, the controller or owner of the AI may be at risk where it has aided and abetted in the creation of an AI that is able to infringe upon other work.

Lavan comment

AI generated content will have an increasingly important role in the near future. The implications for copyright law in Australia will be significant. Although the current state of the law is somewhat uncertain, there will be further discussions and potentially reform in this area. We recommend watching this space closely.

If you require advice with respect to copyright law, do not hesitate to contact Iain Freeman or Andrew Sutton.