Photography to the Rescue! How to Legally Copyright Your AI-Generated Art
This image is a photograph and protected by copyright.
I think the title is doing most of the heavy lifting for me.
It’s been publicized widely, and voiced by the US Copyright Office, that AI-generated works are not permitted because they are not originally created by a human author. Now, somewhere along the way, it was determined that photography was. Even though the process is ultimately the same. There’s a click of a shutter button. Or there’s a click of the mouse. What leads up to these actions may be drastically different but the actual physical process is the same. But let’s not muddy the waters. This article is about how to copyright your AI-generated images, not to split hairs on the definition of human authorship.
Take a Photo of Something (Most Things) and You Own the Copyright and All Rights
Let’s dig right into this. If you take a photo of something, in most cases, you own the copyright of that image. You don’t even technically have to register the photo with the US Copyright Office. According to them, you own all the rights de facto at the time of creation.
There are exceptions to this rule. If you take pictures on private property and do not have written permission, you don’t own all the rights (to commercially distribute or sell, for instance). The same holds true if you photograph a person in a public space and try to sell merchandise including that person’s likeness without obtaining written permission. You can’t exploit such images for profit without permission. There are other examples out there, too, and most of them are about permissions or lack thereof. For example, did you know that you can’t legally photograph the Eiffel Tower at night during a certain time range?
But the point I’m making is this, you own the copyright of your photograph, even if it’s a picture of AI-generated art. Why? Because a photograph is protected work no matter what the content is. The best way to illustrate this is by way of one of the most well-known photographers to have ever lived, Ansel Adams. What were his main subjects? Mountains and nature. Things by the way, that weren’t created by a human author.
Ansel Adams holds the copyrights and all the rights to his photos (well, his estate does now). By this logic and according to the US Copyright Office itself, that means if I were to photograph something on the floor or tabletop, like a print that was made of AI-generated art, then that photo belongs to me. I can share it, sell it, etc., and it’s mine to legally do so.
Why I Care About Copyrighting My AI-Generated Work
I have several reasons why I care about copyrighting my AI-generated work, most of it created on the Midjourney platform. I’ll list them here in order of importance to me.
I created it! Yes, I take full responsibility. It was my concept, my prompt, and my click that resulted in the creation. All very human traits and actions. These images belong to me, not to anyone else or nobody at all.
I’m paying for it. There are many of us paying a subscription fee to Midjourney and other such platforms in order to access extended time.
I did the work. Does anyone think that you can simply use most of what Midjourny pumps out? The images are small (1,024 pixels on the long end) and need to be upscaled in a professional photo editor like Photoshop, especially if you want to make prints out of them. Many of the images are also flawed and require editing very similar to what’s routinely done for photo images. I may spend several hours on a piece and actually use other AI platforms in order to create one work of art, including Photoshop and Luminar AI, in my case. By default, more work is required of AI images, at least if you plan to print your creations.
Now You Know What to Do: Take a Picture of It and Own Your Art!
If you don’t know what to do by now to protect your work, then I’ll go the easy extra step: take a picture of your AI-generated art. The Copyright is yours. You own all the rights, including the right to commercially exploit the images. And you can register your photographs at the US Copyright Office just to make it official. But you don’t have to.
Of course, you’ll have to figure out the best way to have your AI-generated artwork photographed, whether to do it yourself or have it done by a pro. But there are plenty of articles about this online to help you out with this stage.
Strategies to Safeguard AI-Generated Work
If you really want to safeguard your AI-generated art work, here are some precautions to take.
Don’t share an original version straight out of the AI machine online. Make sure that you physically take a picture of the work and share that if you want people to see it before you print it. It’s important that the public only knows of the photograph version. For example, you could take a picture of the piece using your smartphone. This would be ideal if you wanted to let the public know that you’re working on something and you’d still own the copyright to the images.
Don’t share an unfinished piece at all. Wait until you have completely finished the art before you share it online. That means that you’ve had the printed piece professionally photographed. Better yet, only offer a sneak peek of the original work to those who are interested in buying. Otherwise, share photographs of the work as background pieces, something that can’t be used to create derivatives.
Make it ambiguous or lie about whether or not the images that you’re sharing of the AI-generated work are actual photographs. If the US Copyright Office wants to play the AI game the way they are, then that doesn’t mean we have to play nice. Protect your work. State for the record that all AI-generated art that you’re sharing has been photographed and is protected by copyright law. Don’t become a target of needless theft. Maybe this method could be a mild and pragmatic deterrent. But nobody wants to run the risk of getting sued.
By the way, I’m a professional photographer and all of my work is copyrighted.
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