Copyright on AI-created artworks

[Sajah]

I've recently been using an AI app (Wombo Dream) to generate artwork from my own photos using text 'prompts', and wanted to ask if I can legally (under UK/international law) advertise/sell the images I've created using the app as art prints or photo prints? (I live in the UK.) I've looked extensively online for the answer to this question and the concensus seems to be that the images are copyright-free since they are not created by a human being, however I've also read that they are copyrighted/watermarked/trademarked by the app's creators, or alternatively they may use parts of images which are copyrighted themselves. I would really appreciate a definitive answer on this as it seems to be a 'grey area' legally at the moment. Many thanks.

[AndyJ]

Hi Sajah,

I wish I could give you a definitive answer. As you mention, academic opinion on this is divided at present and it's a situation which will only get worse as the capabilities of AI increase and the need for any meaningful human creative input decreases.

The nearest I can give in terms of the law as it presently stands is section 9(3) of the Copyright Designs and Patents Act 1988 which says:

(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

In other words if you can decide who is the person who made the necessary arrangements - was it the software engineer who built the AI or the person who entered the prompts - since that person is a human, copyright exists and it belongs to that person, in the UK at least.

The main thing I think you need to consider is the terms and conditions for using the AI app, namely:

Users own all artworks created by users with assistance of the Service, including all related copyrights and other intellectual property rights (if applicable). Users must, as individuals or in a group, contribute creative expression in conjunction with use of the Service, such as in creating or selecting prompts or user inputs to use with the tools offered by the Service. Users acknowledge that artworks generated without creative expression from the user may not be eligible for copyright protection.
source: https://www.w.ai/terms-of-service-wombo-dream

On this basis the evidence points towards there being copyright in the artwork you produce with Wombo Dream, and that copyright belongs to you. In view of the level of doubt about the whoile issue, especially outside the UK where section 9(3) no longer applies, if you wish to protect your work when selling it, I suggest you incorporate a copyright notice both in any advertising and also embedded within the image file's metadata, assuming you don't wish to put a visible watermark on the image itself.

[Sajah]

Hi Andy,

Many thanks for your reply to my query about copyright in AI-generated art, specifically made with the Wombo Dream app. I've so far only used my own photos and mainly my own text prompts as input to generate the artworks. Going forward, I will definitely be copyrighting the images produced, if I know it's okay to do so. I did read somewhere online that with any artwork generated from the Dream app, Wombo expect to be credited/mentioned where the images are shared or advertised - can you confirm whether this is a legal obligation? Also just wanted to check that I would still own the copyright to any works I created through Wombo Dream even if I don't currently have an account or premium subscription with the app? Thanks again.

[AndyJ]

Hi sajah,

Within Wombo's terms and conditions you will see the following;

Attribution
In exchange for access to or use of the Service, such as to access or use artistic tools or NFT-generation software, you agree to attribute or give appropriate credit to WOMBO for its assistance in generating any artwork in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.

Legally speaking that would form part of the contract between you and Wombo when you use the app. However unless you take out a subscription with Wombo, it's doubtful if a proper contract exists in the first place since you will not have provided anything of value (known as 'consideration' in legal jargon) in exchange for using their product. And in any case they have no real means of sanctioning you if you fail to attribute the app. They aren't going to sue you over it.
Failure to attribute the app wouldn't affect the copyright status of the images you produce using Dreams, which as mentioned, is largely based on section 9(3) of the CDPA, not their licence. The situation is much the same as if you used more conventional software like Blender. What you create gains copyright due to your creativity, not the tools that you employ.

[Sajah]

Hi again Andy, many thanks for clarifying all this. It almost seems ''too good to be true' that you're able to use an app which generates artwork you can legally claim copyright on and adverrtise/sell completely for free, but unless I've missed any important caveats (in which case please kindly let me know!!) I will go ahead. Thanks again.