If you work in Marketing, the chances are you’ve spent some time already googling questions about AI-generated art and copyright. Can your brand use it? Is it legal? Ethical? And you’ve probably found yourself sifting through a digital haystack of about 100 contradictory articles, yet arriving at no definitive answer. Be reassured: that’s normal, because the landscape of AI art is as gray as a Paris sky in February.

At Metodas, we recently dipped our toes into these murky waters by featuring AI-generated art in most of our communication. This move ignited a spark with some of our contacts, with some accepting our innovative spirit while others fretted over the potential legal pitfalls. Buckle up as we take you on a journey through this legal jungle, decrypting the key points to consider for brands thinking about taking a similar leap of faith.

It is not another Metaverse hype, but an actual revolution that has already started

Generative AI is more than just a shiny new toy for marketers—it’s akin to discovering a secret cheat code in the game of content creation.

Brands that would typically fork out thousands of dollars for photoshoots can now turn to AI tools and churn out high-quality images at a fraction of the cost and time. But this isn’t just about aesthetics or keeping up with the Joneses in the digital age—it’s about the potential for significant return on investment. Generative AI can be a game-changer, a disruptive force that redefines how we approach content creation. The legal fog surrounding AI-generated content is what stands between brands and an efficient, cost-effective future of content creation. The potential for ROI is immense, but so is the risk of stepping on legal landmines in the process.

Here’s a case in point: on the left, an image from an actual photoshoot, and on the right, an imitation we created with a single, simple prompt on Midjourney. Days of production, preparation and editing, versus just 1 minute and no food waste. That’s not merely impressive, it’s revolutionary.

Why is the legal aspect of AI-generated art it so complicated?

To truly grasp the complexity of this legal labyrinth, we need to take a closer look at the key legal conundrums that arise when discussing AI-generated art and copyright. These issues are far from trivial and are currently the subject of intense debate among lawyers, artists, and tech companies alike. Here are the main questions keeping these folks up at night:

1. Ambiguity in Intellectual Property Laws

Intellectual property laws around the world were written long before the advent of AI. The legal landscape is still evolving, and court cases are starting to emerge. However, until there are more definitive rulings or new legislation, it’s unclear how these issues will be resolved in the courts​​.

2. Training Data and Copyright Infringement

Generative AI models are trained on large data sets, often scraped from the internet. This includes images, text, and other types of content that may be copyrighted. The question of whether using this data for training constitutes copyright infringement is a major legal conundrum​​.

3. Ownership of AI-Generated Works

In the US, works generated solely by a machine cannot be copyright protected. However, if the creator can prove substantial human input, copyright may be possible. This raises questions about who owns the copyright of AI-generated works: the creator of the AI, the operator of the AI, or the individual or company that owns the data used to train the AI​​.

4. Fair Use Doctrine

The fair use doctrine, particularly in the U.S., allows limited use of copyrighted material without permission from the copyright owner for purposes such as criticism, parody, news reporting, research and scholarship, and teaching. AI tool creators often argue that the training of their software on copyrighted data falls under this doctrine. However, the interpretation of fair use can be subjective and is determined on a case-by-case basis, adding another layer of complexity to the issue.

5. International Legal Differences

The legal landscape for AI-generated art is not uniform across the globe. Different countries have different laws and interpretations when it comes to copyright and intellectual property rights. For instance, the EU and the U.S. have subtly different legal allowances for data scraping. This international disparity makes it even more challenging for brands that operate globally to navigate the legal landscape.

6. Technical Misunderstandings

Lawsuits and legal discussions often contain technical inaccuracies about how AI models work, leading to misunderstandings and misinterpretations. For example, AI art models do not store images but rather mathematical representations of patterns collected from these images. The software does not piece together bits of images in the form of a collage, either, but creates pictures from scratch based on these mathematical representations. These technical nuances can significantly impact legal discussions and rulings.

Legal Conundrums and Case Studies

High-Profile Cases Highlighting Legal Grey Areas

Several high-profile cases highlight the legal grey areas concerning AI and copyright law, underscoring the complex nature of these issues. A recent lawsuit launched by artists Sarah Andersen, Kelly McKernan, and Karla Ortiz against Stability AI and Midjourney, creators of AI art generators Stable Diffusion and Midjourney, and artist portfolio platform DeviantArt, has brought these issues to the forefront. The artists allege that these organizations have infringed the rights of “millions of artists” by training their AI tools on five billion images scraped from the web without the consent of the original artists. The outcome of this case could have a profound impact on how copyright law applies to AI-generated content and the use of existing copyrighted materials to train AI models.

The TikTok and Bev Standing Case: A Voice Use Controversy

Another notable case involves TikTok and voice actress Bev Standing, who alleged that TikTok was using her voice, which she had previously recorded for a different purpose, without her consent. The issue was eventually resolved when TikTok agreed to an undisclosed settlement and acquired a license to use Standing’s voice.

Brands and AI-Generated Art: The Nestlé Debate

The legality of large brands using AI-generated art is also being questioned. Nestlé, for instance, ventured into the realm of AI art direction, sparking a debate over the ethical and legal implications of such a move. These cases, and others like them, underscore the complex questions being raised about the copyright status of AI-generated works and the use of copyrighted materials in AI training data.

The Evolving Legal Landscape of AI and Copyright Law

The legal landscape surrounding AI and copyright law is still very much a developing area, both in the United States and internationally, and these questions are likely to be the subject of legal scrutiny and debate in the years to come.