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Who Owns DALL-E Images?

By Steven Ellison, Esq. on August 29, 2022 8:19 AM

Open the pod bay doors, HAL.

With artificial intelligence and some imagination, you can now create digital images that rival those of great artists.

In July 2022, OpenAI, an AI research laboratory, released the beta version of its revolutionary image-generating AI model, DALL-E 2. With DALL-E 2 and its predecessor, DALL-E, artists and professionals can create all sorts of images in limitless styles, from Renaissance-like paintings to photographs. The creative uses are boundless.

This raises a question: Who actually owns the masterpiece you make?

The answer isn't as clear as you may think.

What Is DALL-E?

Let's start by getting into the tech a little. DALL-E 2 is a second-generation AI model that can create realistic images from natural language descriptions. You could enter the phrase, "King Arthur riding a unicorn in Japan in the style of Monet," and the AI will produce images in that style. Some of the images produced will look like Monet actually painted them.

That's not all. DALL-E 2 can edit existing images, manipulate and rearrange objects in the image, correctly place elements in an image without express instruction, and add textures and shadows to images automatically.

Right now, DALL-E 2 is only available to certain members on OpenAI's waitlist. But if you want to get a sense of the possibilities that art-generation AI presents, try using Craiyon (formerly known as DALL-E mini). Craiyon is an ad-based, free-to-consumers AI model that also generates images from text (although not at as high a resolution as DALL-E 2 does).

Can You Sell Your DALL-E Images?

Say you are one of the lucky members on the waitlist who got access to the beta version of DALL-E 2. After playing with it for a while, you manage to enter text that generates what you believe to be the next Rembrandt. And to think — you have no artistic or computer skills to speak of.

Before you get too excited about the millions you plan to make, however, you should be aware of a couple of thorny legal issues.

The first issue is whether anyone can actually "own" an AI-generated image. At least in the U.S., the answer isn't clear. But despite what you might think, it probably isn't you.

Copyrights are a form of intellectual property protected by federal law. Owning a copyright gives you the exclusive right to reproduce, publish, or sell an original work of authorship, such as a book, a painting, or a song. Under current copyright law, artists using traditional mediums, such as paint, pen, or paper, hold copyright over their work by default.

But what if the work is generated by AI? According to the U.S. Copyright Office, copyright law only protects works that are made by a human being, not those of a monkey, an elephant, or an AI model. If a human didn't author the work, the Copyright Office won't register the copyright (and you can't sue someone if you can't register your copyright). In the eyes of the Copyright Office, the public is free to reproduce, publish, or sell your DALL-E 2-generated masterpiece, no strings attached.

Congress could change the law, or the courts could recognize a copyright in AI-generated work despite what the Copyright Office thinks. That would undoubtedly clarify things. But as it stands, don't plan on making your fortune selling DALL-E 2 images just yet.

Contract Law: DALL-E's Terms of Use

Even if you could own a copyright in AI-generated work, there is a second legal issue. To use DALL-E 2, you have to agree to OpenAI's Terms of Use. According to these terms, OpenAI actually owns the images you create (which the Terms of Use call "generations"). OpenAI graciously grants you the right to sell your DALL-E 2 images (assuming you can somehow persuade someone to pay you for an image they can copy for free).

If that feels like the maker of the paintbrush telling Monet what he gets to do with his painting, that's understandable.

To add insult to injury, OpenAI's terms go further. Just to make it perfectly clear, you expressly assign any rights you might have in your image (whatever those might be) to OpenAI by contract. As the owner of the image, OpenAI can grant other people the right to reproduce, publish, or sell images that you create with DALL-E 2. You could find yourself in the position of walking into a store and seeing it selling your DALL-E 2 masterpiece on cheap T-shirts, and there would be nothing you could do to stop it.

So What Can You Do With a DALL-E Image?

As it stands, you can pretty much do anything commercially that you want with your DALL-E 2 image. The downside is that you can't stop anyone else from doing the same with your image.

This is a case where the law needs to catch up with the technology. Until then, enjoy experimenting with art-generation AI models. You will be amazed at the beautiful works you can create. Just don't plan on quitting your day job for now.

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