By Hayden Nelson
As Artificial Intelligence (AI) continues to advance, the use of generative algorithms to produce art has become increasingly popular. However, this new form of creative expression poses unique challenges for both artists and the law. The wins of a Midjourney-generated artwork at the Colorado State Fair in September last year and a DALL-E 2-generated photograph in the creative photo category at the Sony World Photography Awards in March this year, are harbingers of the coming threat that AI poses to traditional artists.
What is AI Art?
But what is AI art exactly? Generative AI Programs are trained using existing artists’ work through a process known as “machine learning”. This involves feeding large amounts of data into an algorithm and allowing the machine to identify patterns and generate new content based on those patterns. AI algorithms can be trained on thousands of paintings, drawings, and photographs to create new pieces of art that imitate the style of those original works.
Who Owns the AI Art?
So, who owns the rights to an AI-generated work of art? Is it the person who presses the “generate” button that creates the artistic work or is it the artist whose work the AI art is based on? — this question is especially important where the generated art is directly based on an artist’s work e.g., where the prompt for the generative art reads “Paint a cityscape in the style of Norman Rockwell”. Even if the AI-generated artwork is not an exact copy of the original work, it may still be considered derivative, and the copyright owner could claim ownership of the new work. This article will focus on the hurdles that a person who generates AI art will have to clear before they can gain access to copyright protections.
Copyright Protection of AI Art
There are three main hurdles for an AI artwork to be protected by copyright – (1) does it fall under the statutory definition of copyrightable artistic work? (2) Is it original? (3) Finally, is their human authorship involved in the creation of the work?
- Artistic work that can be copyrighted:
Section 10 of the Copyright Act 1968 (Cth) covers many different categories of artistic work:
(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
(b) a building or a model of a building, whether the building or model is of artistic quality or not; or
(c) a work of artistic craftmanship whether or not mentioned in paragraph (a) or (b)
- Independent Intellectual Effort Required for Originality
While one may intuitively think that an original work must be inherently creative or novel, that is not the legal test we have in Australia. To be an original work, the High Court has stated in the leading case of IceTV Pty Limited v Nine Network Australia Pty Ltd (2009) 239 CLR 458, that there must be some independent intellectual effort involved in the creation of the work.
In that case, IceTV produced IceGuide, ‘a subscription-based electronic programme guide for television’, which combined data from Nine’s Weekly Schedules with IceTV’s own program information and synopses. Despite using Nine’s information in the creation of their TV guide, the Court determined that there was sufficient independent intellectual effort required for originality.
Given the interpretation of independent intellectual effort in this case, it may not necessarily be a high bar for generative AI art to satisfy. In deciding whether an artwork meets this threshold, the courts may have to consider the number of words used for an AI art prompt, whether other non-AI materials have been used, and whether other programs/methods (e.g. Photoshop) have been used to alter the initial generative AI output.
- Author must be Human
This last hurdle may be the hardest for generative AI to overcome. There must be human authorship for a work to be copyrightable. In the case of Telstra Corp Ltd v Phone Directories Co Pty Ltd  FCAFC 149, the court decided in relation to phonebooks that were written with a computer program, that the threshold for human authorship was not satisfied. Overwhelmingly, the work of compiling information for the phonebook was done by a computer program, not human authors. Though humans were involved in the collection stage and, ultimately, were in control of the program, they were not ‘shap[ing] or direc[ting] the material form themselves’.
Is the person who writes a prompt to generate AI art truly shaping and directing its form? Potentially, if the prompt given to the AI is sufficiently specific and detailed. But even so, the AI is doing the heavy lifting in creating the artwork itself.
As a side point, the court chose not to consider the intellectual effort needed for originality in this case, but did make some general observations. The Court stated that a person who engages in ‘mechanical processes’ or who simply records factual information, is not creating something.
Where to from here?
The above cases relate to TV guides and phonebooks. Only when there are common law precedents about AI artwork, will we have greater clarity about this pressing issue.
Online platforms have already moved ahead to introduce terms of service to address the issue of AI art. For example, the online art platform, ArtStation has implemented a two-fold approach of requiring artists to label whether their work is created by AI and providing an opt-out system whereby artists can prevent their work from being used by generative AI programs.
There are further questions that will need to be considered – such as whether the creator of the AI program has any copyright claims over the generated artwork? Conversely, could the creator of the AI program be charged with plagiarism? How will cross-border claims operate? And lastly, what changes, if any, are needed to enable the law to adequately address the copyright issues posed by AI? The answers to these questions and many others will be dealt with in the years to come.
This article is meant to provide generalised information regarding AI Art and the nature of Intellectual Property and not meant to be treated as formalised legal advice. However, if you require qualified legal advice on anything mentioned in this article, for example, issues of Intellectual Property, our experience team of solicitors at Foulsham & Geddes are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458,  (‘IceTV’).
 Ibid .
 Ibid .
 Ibid .
 Telstra Corp Ltd v Phone Directories Co Pty Ltd  FCAFC 149 at .
 Ibid .
 Ibid .
 Ibid .
 Feist Publications Inc v Rural Telephone Service Co Inc (1991) 499 US 340 at 347 cited in Telstra Corp Ltd v Phone Directories Co Pty Ltd  FCAFC 149 at .