By this point, you’ve probably seen Adobe’s beta of Generative Fill in Photoshop, which allows you to expand a photo beyond its original borders. It is an incredible feat of technology, but brings up complicated questions: who owns that new, expanded photo? Is it copyrightable?
Beyond that, is that new photo covered by the copyright protections of the image used at the center? Basically, if a person took one one of your photos and used Generative Fill to create a larger picture, would they be able to claim it as new art? Would you be able to tell them to stop?
It sounds like questions that would have a solid answer, but given the state of legal cases and rules regarding AI, what could come off as a reasonable response to photographers is very likely far more complicated.
“Generative Fill is really jaw-dropping technology, but as you mention, there are many copyright issues inherent in this type of creation,” Thomas Maddrey, Chief Legal Officer and Head of National Content and Education First at the American Society of Media Photographers (ASMP) tells PetaPixel.
“Like all generative AI models currently available, we remain concerned about the ownership and copyright protections afforded to the images used to ‘train’ the AI models. Second, however, is what you raise: the output, and if the output itself can be enough to create a new work under existing copyright law when added to an existing photograph.”
We should look at what the United States Copyright Office (USCO) thinks. Unfortunately, it wasn’t willing to comment about specific new technologies and that makes sense — things are moving too quickly for it to spend time specifically addressing each new AI technology.
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“The Copyright Office declines to comment on any specific AI technologies. We would refer you to our recent policy statement on copyright registration for works containing components generated by AI, as well as our recent listening session on the impact of AI on visual arts works,” the Office tells PetaPixel.
That policy statement actually points to a case PetaPixel covered earlier this year, where the Office rescinded a copyright it had granted to an AI-generated comic.
“The Office reviewed a registration for a work containing human-authored elements combined with AI-generated images,” the Office says.
“The Office concluded that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright,” the Office says.
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“In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity.”
Basically, while the images did have human input, they were entirely AI-generated and thus were not copyrightable. The only copyrightable material was the text, which did not involve AI at all.
“Under current copyright office guidelines, the portions of an image that were created with generative AI technologies would need to be disclosed and disclaimed as part of the registration process,” Maddrey says.
