How A Century-Old Insight of Photography Can Inform Legal Questions of AI-Generated Artwork

Artists and creators can generate digital images, alter photos, conjure creative text, or make code all from a set of natural language text-based prompts using generative artificial intelligence (AI) platforms like DALL·E or Midjourney. But artists’ ability to own these works is hardly clear.

Earlier this year, the U.S. Copyright Office took a stance against generative-AI works, cancelling a copyright claim by author Kris Kashtanova for comic book images made with the aid of Midjourney. This might have prompted artists to question whether they must avoid use of generative-AI-assisted imagery to retain rights to their works.

But legal problems of copyright and machine-created works are not new, and history can give us hints to the likely outcome of the present legal battle.