AI Generated Images

Using technology to create art is nothing new—it’s been around for centuries! Think about how photography changed the game when it was first introduced, or how interactive computer games sparked debates. Over time, copyright law has evolved to recognize human “authorship” in the use of these creative tools. Now, with AI assisted art, there's a big question: where does creativity actually happen in the process?

This note explores the legal position when it comes to AI-generated content in English law. These differing approaches impact not just copyright law but also technology, creative industries, and even how content platforms handle liability.

At the heart of the discussion is whether artistic content that includes AI input should receive copyright protection. AI systems like Midjourney, ChatGPT, and DALL-E have been described as both mechanical and creative—it really depends on how you see the role of technology in the artistic process. Should AI-assisted content be included in a broader definition of creativity? One way to approach this is by looking at factors like “novelty” or “degree of transformation.” But at the same time, copyright law is built around human creators, often assuming that only a person can hold rights to a creative work.

In England and Wales, Section 178 of the Copyright, Designs and Patents Act (CDPA 1988) allows copyright protection for works generated by a computer when there’s no human author. However, since copyright can’t be assigned to a machine, it instead belongs to the person who made the necessary arrangements to create the work. In this case, the copyright lasts for 50 years instead of the usual term, and moral rights don’t apply. What’s unclear is whether those arrangements—such as writing prompts for AI tools—need to meet the traditional originality threshold or if the standard for originality is lower for computer-generated works.

Another legal grey area is the distinction between computer-generated and computer-assisted work. How much must an AI system operate independently before its output is considered entirely AI-generated rather than just AI-assisted? Depending on how the law defines “necessary arrangements for creation,” authorship could even be assigned to the developers or companies behind the AI system. This matters because authorship affects liability—some platforms want users to take responsibility for any copyright-infringing AI outputs, while companies like Adobe assure users they won’t be held liable for AI-generated content.

Implications for Creative Industries

Kira Rothwell - London Mavericks Instagram

There are pros and cons to each approach, and policy decisions need to acknowledge both sides. As I’ve written before, generative AI is unlike any previous digital tool—the sheer volume and speed at which AI-created works can be generated means we’re heading toward a world with more copyright-protected content than ever. But as Vicki Strachan points out, holding copyright in an AI generated image may not mean much in practice, because someone else can quickly create something similar with minimal effort.

This becomes even more complicated when thinking about the use of someone’s face being imported into a graphic—like with the action figurine card craze. In England and Wales, this would likely fall under long-standing image rights (IR) principles, where the use of a real person’s face to generate AI content could potentially be considered an infringement, as it directly utilizes their likeness.

Some legal theorists argue that AI-generated content should be placed in the public domain to prevent an overload of private rights that might discourage new creators from innovating due to fear of copyright infringement. On the flip side, AI artists believe that crafting prompts and curating AI-generated work requires skill and judgment, making it worthy of recognition and protection.

From an innovation standpoint, policymakers might see AI-assisted creations as an economic advantage, encouraging ownership and licensing. What’s really needed now is evidence on how AI-generated work—whether copyrighted or not—affects the careers and livelihoods of creators.

Article provided by Tactic Connect