While millions of people play with AI-powered image generation tools like DALL-E and Midjourney, new works of art are generated by the billions. Many of them are curiosities, some of them are legitimately incredible works of art that I wouldn’t hesitate to stick on my wall. In fact, I did; I have a Meural digital art display and it is currently playing a rotation of some of the most interesting artwork Midjourney has generated for me.
However, the picture above got me thinking; the prompt for it is “Lovers, in the style of Banksy,” which is remarkably close, stylistically, to many other Banksy works—it even framed it for me, unprompted. With a small amount of manual retouching (or with a lot more experimentation), I’m sure I could make Midjourney generate a work that anyone would recognize as “a Banksy”.
The challenge is going to be complex and I will be watching the legal universe very closely to see how this is going to develop over time. There are some obvious issues here, and a few less obvious ones, but a few of the curiosities I have right out of the gate are related to copyright and plagiarism.
Are we all just monkeys pressing shutter buttons?
If you use a free account or a trial account for Midjourney, you will get one Commons Noncommercial 4.0 Attribution International License, which means that you will be able to use the images as long as you do not sell them or make money from them, and as long as you give credit (“attribution”) to Midjourney. If you pay for your account, the company says “You basically own all assets you create using Midjourney’s image generation and chat services”.
In its terms of service, the company further specifies that you grant Midjourney a “perpetual, worldwide, non-exclusive, sub-licensable free, royalty-free, irrevocable copyright license to reproduce, prepare derivative works of, publicly display, publicly perform, sub-license and distribute text and images you request put into the Services, or assets produced by the Service at your direction.” In other words, even if you “create” a new piece of art, and you have all rights to use the images the service creates, Midjourney also retains its own license to use your works, including sublicensing.
The other distinguishing feature is that “Midjourney is an open community that allows others to use and remix your photos and questions when posted in a public setting.” Which means that even if you spend a lot of time creating very fine-tuned questions about what you’ve created, another user could use your image as a basis for their own experimentation, and in theory create derivative works that are extremely similar to “yours”.
Imagine a world where you generate really cool art. You develop a unique style that “only you” are capable of creating using Midjourney’s tools, and you decide to sell them, either as NFTs, prints, or what have you. Because of the licensing agreement you have with Midjourney, the company may begin selling or licensing “your” artwork. It probably won’t; that would be bad business. But another user can further develop “your” style and images and start selling their own artwork based on them.
There is another side issue as well; in theory, with the same prompts and random seed used to generate the images, you could end up with someone else generating the same, or very similar, image to the one you created. They could start selling that image and we end up with a very curious situation where two people really created an image that they thought was their own original but happen to end up with extremely visually similar graphics.
Then there is the issue of plagiarism. At the top of this article I “created” something recognizable as a “Banksy”. That artist in particular is interesting because his identity is unknown and he’s a fervent anti-capitalist, which means he’s relatively unlikely to a) come out of hiding and b) sue me for “creating a Banksy”. Also, there are many more fake Banksys out there that were made with stencils and spray paint, which would have made more sense to go for. However, the point remains; there are quite a few contemporary artists out there with very distinctive styles, and over time the AI will learn to imitate many of them. These styles are not copyrighted, but they may well be trademarked in some way. And while it wouldn’t be “illegal” to plagiarize another artist’s style, I can totally see how an artist with a distinctive style would be annoyed if a nerd like me suddenly started selling NFTs in their style.
One example; I challenged Midjourney to create “a colorful graffiti mural of Batman and Robin in Beautiful, Downtown, Oakland, California,” and ended up with this. Now, I’m not familiar enough with individual graffiti styles to recognize this as the potential work of a specific artist, but it’s not inconceivable that I’ve accidentally plagiarized someone with that call.
It becomes a question of who has created a particular work of art. A few years ago there was a strange case of a monkey taking selfies with a photographer’s camera. Personally – and although it is difficult for the monkey to represent itself in court to defend its rights – I think that a monkey that presses the shutter button and has creative input into how the image looks deserves its own copyright. The courts went the other way after a long and protracted process.
It leaves me wondering; are we all just monkeys pushing shutter buttons, or do we “own” the copyright because of the amount of our own creativity we add to the process, even in a situation where very few of us – including Midjourney himself – are able to explain exactly process of how a particular image was generated.