Who owns the DALL-E images? AI legal experts step in

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When OpenAI announced the expansion of beta access to DALL-E in July, the company offered paid users full usage rights to reprint, sell, and market the images they create with the powerful text to image generator.

A week later, creative professionals across industries were already buzzing with questions. Top of the list: Who owns the images served by DALL-E, or for that matter, other AI-powered text-to-image generators, such as Google's Imagen? The owner of the AI ​​that trains the model? Or the human who prompts the AI ​​with words like "red panda wearing a black leather jacket and riding a motorcycle, in a watercolor style?"

In a statement to VentureBeat, an OpenAI spokesperson said, "OpenAI retains ownership of the original image primarily so that we can better enforce our content policy."

However, several creative professionals told VentureBeat that they were concerned about the lack of clarity regarding ownership of images from tools such as DALL-E. Some who work for big agencies or brands said these issues might be too uncertain to warrant using the tools for high-level client work.

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Bradford Newman, who leads global law firm Baker McKenzie's machine learning and AI practice in his Palo Alto office, answered the question "Who owns the DALL-E images?" " is far from clear. And, he pointed out, the legal fallout is inevitable.

“If DALL-E is adopted the way I think [Open AI] envisions, there will be a lot of revenue generated from using the tool,” he said. "And when you have a lot of players in the market and issues at stake, you have a high risk of litigation."

Big stakes are contentious for case-specific responses

Mark Davies, partner at Orrick, agreed that there are many open legal questions regarding AI. “What actually happens is when there are big stakes, you plead it,” he said. "And then you get the answers in a case-specific way."

In the context of text-to-image generators and the resulting creations, the question is mainly about what is "fair use", he explained. Under US copyright law, fair use is a "legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyrighted works in certain circumstances" .

In a technology context, the most recent and prominent example was the Google LLC v. Oracle America, Inc. case in 2021. In a 6-2 decision, the Supreme Court ruled that the use by Google of Oracle's code amounted to fair use. under United States copyright law. Accordingly, the Court did not consider whether the copied material was copyrighted.

A big lesson from this case is that these disputes will be decided by the courts, Davies pointed out. “The idea that we're going to get a magic bullet from a different place just isn't the way the legal system really works,” he said.

However, he added, for an issue like ownership of DALL-E images to progress, it often requires two parties with a significant stake, as litigation is very expensive. “It takes fundamental disagreement on something really important for these rules to develop,” he said. And it has happened in the past, he added, with advancements as varied as Morse code, railways, smartphones and the internet.

“I think when you experience a technological shift, it feels unique and special to you,” he said. “But the Industrial Revolution happened. It worked out. »

Yet some experts say that Open AI's statements about the use of DALL-E - ...