Jean-Michel Basquiat didn’t create the illustration below. Neither did I. A very powerful artificial intelligence program that creates images from textual descriptions generated it. The prompt given to this machine learning wizard was “a portrait of Jean-Michel Basquiat in the style of Jean-Michel Basquiat.” That prompt is not ambiguous. And the resulting illustration is clearly based on his style, and it is a fairly creative abstract of his likeness.
Because I pay for a Standard Midjourney Plan, the company has given me limited commercial rights to the images created using my text inputs (prompts). In signing up for the service, I agreed that they would be given “a perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute text, and image prompts you input into the Services or Assets produced by the service at your direction.” They own what’s created on their platform, and they provide a license to the things I create from my prompts.
This means I can sell them. For example, I could use a service and print the image on wood, hang it on a local restaurant wall with a for sale sticker, and see what transpires. In that sense, I own it for that purpose. But who really owns AI output, and can anyone own the Jean-Michel Basquiat style?
Copyright Law & The Basquiat Style
Unfortunately, in 1988 John-Michel Basquiat passed away from a drug overdose at the age of 27. No new Basquiat works of art will ever be created, and The Estate of Jean-Michel Basquiat is currently administered by the late artist’s sisters, Jeanine Heriveaux and Lisane Basquiat. Any surviving copyrights would have been passed to them. But what about the “Basquiat Style?”
“Copyright law protects finished works of art.” writes The Legal Artist. “It does not protect things like facts, ideas, procedures, or an artist’s style, no matter how distinct.” You can’t copyright style. If I decided to try to paint in the style of Basquiat, I would still own the end result of the painting process, even if it looked very much like how Basquiat may have painted it. Imitation, after all, is the sincerest form of flattery. Isn’t it?
Warhol + Basquiat = New Creative Thing
The best article I could find on this topic was actually written in response to The Next Rembrandt. The article was titled, “Who holds the Copyright in AI Created Art.” Although written six years ago, it’s worth a read. It lays out the questions surrounding this in great detail.
Can the computer or the computer’s owner assert copyright? Let’s look first at the rules laid out in the Copyright Act and see how they impact the various players who may want to assert a copyright claim.
First, before determining who may hold the copyright, we must first determine whether computer-generated art fulfills the basic requirements necessary to receive copyright protection. Copyright protection is available for 1) an original work of authorship, 2) fixed in a tangible medium 3) that has a minimal amount of creativity. If a work doesn’t have all three of these components, then it is not the copyrightable subject matter.Who holds the Copyright in AI Created Art
Copyright law seems clear enough, however. It explicitly addresses the issue of copyright protection as it relates to non-humans in 503.03(a) Works – not originated by a human author:
In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood, even if polished and mounted, is not registrable.Copyright Office Practices
That said, we live in strange times. For example, if I take measurements of my house and I use pencil and paper to create a floor plan for the house, I think it’s pretty clear that the floor plan I create is my work. Further, I believe any reasonable human would agree. I think the Copyright Act of 1976 supports this thinking as well.
But that did not stop a lawsuit claiming that any floor plan created for a home is the copyright of the architect who designed the home. And a successful one at that, filed in the United States Court of Appeals for the Eighth Circuit. In that case, “Designworks Homes, Inc. sued Columbia House of Brokers Realty, Inc., after the real estate company reproduced and published floor plans along with their listings. The court ruled that the use of floor plan reproductions may infringe on architectural copyrights.” The National Association of REALTORS® has filed a SCOTUS brief to combat this, but it remains in play.
The proliferation of floor plans generated by 360° and 3D tour companies was likely one of the reasons for the lawsuit coming into existence as it has. There are lots of targets to shoot at if you can get a favorable ruling. And I suppose that is what has prompted my writing today.
What happens when millions of people are generating billions of derivative images every single day? As I type this 123,232 people are actively creating images. Almost 750,000 people have become members of one type or another. An astounding volume of image creation is taking place from just text prompts along. And you can already feed a reference image into Midjourney and have it build variations based on that single image.
What if I don’t have the right to use that image in the first place? What rights to I have to restict the use of my own photos on these services? None of this magic was possible until this moment in history. Like many of our existing laws, the Copyright Law of 1976 could not have imagined the world in which we now live. DALL-E 2 and Imagen will likely raise the bar even higher. We’re in uncharted waters.
From Rembrandt To Basquiat And Beyond
Six years ago, it took a massive collaboration between ING, Microsoft, Delft University of Technology, and the Mauritshuis Museum in Prague to produce the project titled “The Next Rembrandt.” The culmination of the project was a single “painting.” They used an elevated printing technique on a 3D printer that output multiple layers of paint-based UV ink to create a physical version of an AI-generated new painting “by Rembrandt.”
Based on pure effort alone, that was most certainly an original piece of art. I believe it was owned by that team. But I did very little work at all to create the images you see on this page. I typed a few words. You should be prepared to order up your own original piece of physical art in the style of your favorite artist, living or dead, in the next few years. It’s coming. And I think you’ll own it.
In 2016 even the incredibly gifted team that created The Next Rembrandt would have scoffed at the idea that you could create “The Next Basquiat” (or the next million Basquiats) with so little effort. It is 2022, and I’m still blown away. And you should be too.
Many questions need to be answered surrounding this technology. Who owns the output and under what conditions are just the tip of the iceberg. My biggest concern, however, is that there are too many questions we don’t even know we should be asking.