The Legal Quagmire of AI Art

If you are reading this, you already know I run a small press. But I don?t know if some folks understand HOW SMALL of a press I run. I?m a micro press. Tiny. Spare room of my house size. Been that way since day one. Its me and whatever freelancers and contractors I happen to hire for various projects.

Now unlike a lot of people in my position, I do, in fact, have an attorney. But that should probably be ?attorney? because he is an old friend and most of what he does for me is off-the-cuff review of very simple documents and the occasional chat about upcoming projects. If crap went sideways and there was serious work that needed to be done, he would expect to be paid (and rightfully so!) and he isn?t exactly cheap (nor should he be.)

Which brings me to the legal quagmire that is AI Art.

No Copyright Protection

The U.S. Copyright office has officially said that AI Art is not protected under copyright. This is sort of a huge deal for people who publish professionally. Whether or not YOU specifically agree with that position has no bearing on this discussion. Are YOU going to cover my legal expenses? No? Then, yeah, your disagreement with the U.S. Copyright office is irrelevant.

So lets say I hire an artist to create work-for-hire images for a project. I pay the artist the agreed upon rate and now think I own the art. But I discover that the artist used AI to create the images instead of creating them personally. Now I have a problem. Because the art I paid for is not protected by copyright. Anyone can just make copies of it and use it for themselves. I have no legal protection to prevent people from duplicating the art I paid for and no standing to send take down notices because the art is not protected.

Potential for Stolen IP

The larger issue is that the majority of these programs do not have controls in place to make sure they are training the software on copyright-free or public domain work. AI Art would be less problematic if it was trained on public domain images or images submitted voluntarily by artists. But that isn?t what is happening. These programs scrap the internet for images regardless of ownership.

Now contrary to what the internet ?gurus? will tell you, just because an image appears on a website does not mean anyone and everyone has a ?fair use? right to use that image for whatever they want. Copyright protects images regardless of where they are published: whether that is a print magazine, a movie, or a Facebook post. That photo of your five-year old?s birthday party? It goes in the bucket. Your sketch of your favorite anime character you posted on a fan site? It goes in the bucket. Your professional portfolio images you posted on your professional site? They go in the bucket. These programs do not differentiate sources or even make an effort to get permission.

So now let?s say I hire an artist for a project, or accept a submission for cover art. I think I have a legal right to use the image. Then I get a take down notice from the artist who recognizes their work in the image. That is the least problematic issue: Amazon removes my book from their site because someone challenged the copyright of the cover art. I may be able to fix that by swapping out the cover, but I am still out:

  1. The money I paid to the artist for the cover I thought was legal
  2. The money I had to pay for a replacement cover
  3. The loss of revenue from sales as the book is offline

But worse case scenario is that I am sued for violating copyright. And as you can see from a cursory reading of U.S. copyright code, even accidental infringements can statutorily charges of up to $150,000 per occurrence.

I don?t know what you think small presses make?but let?s just say $150,000 would essentially bankrupt me and put me out of business.

And that is just U.S. code. My books are available worldwide. I could be sued in Japanese court over copyright infringement. I could be sued in French court. Even if I have a valid defense, the cost of fighting a case in a foreign country is detrimental to my financial health.

Rest assured, boys and girls, just as some unscrupulous lawyers have turned patent law into a means of blackmailing small businesses with potential lawsuits, you can count on a “cottage industry” of copyright lawyers doing the same thing. It isn’t really a matter of if but when at this point.

Small Publishers have no real recourse

Talking with my attorney, he suggested added a clause to the publishing contract that holds the artist liable for all fines, fees, and legal costs associated with a copyright charge. But what would that do, realistically? Let?s be clear. These cases go through civil courts. The brunt of all legal costs is 100% on the person bringing the case. If an artist in Italy sells me AI generated work and I get sued by the real copyright holder in the U.S., what meaningful recourse do I really have? I spend all that money on legal fees to get a judgement and THEN WHAT?

Because even if by some FLUKE OF NATURE I am able to get a court judgment that the artist is responsible, then what? Most freelance artists don?t have a pot to piss in. You can?t get blood from a rock, as they say. I get a judgement against some 18-year-old kid in Germany who sold me AI Art and where is the money actually coming from even with a judgement?

New Artists Will Suffer

So what is a small publisher supposed to do to protect themselves? You limit your liability to known commodities. I?m lucky because I do have a small group of artists I have used a lot over the years who I know and trust. But I am going to be very reluctant to work with artists I don?t know. I?m going to shy away from artists that may be ?pro AI Art? in their social media posts because I won?t know if they are submitting AI work or original work. I will rely more on stock art sites, because at least professional stock art sites provide insurances that will protect you in the event of an infringement using their art. And no, I can?t afford to just take a ?trust me, this is original I swear? email promise. I don?t have $150,000 to bet that you are honest.

And the people arguing the loudest how this is all ridiculous and not going to happen don?t have $150,000 to bet with, either. So they need to shut up.