Why would a photographer have a significant advantage using AI compared to an AI artist without photographic archives? To date, no court has granted copyright to an AI creation because it is challenging to prove the human creative element. Currently, the copyright on an AI image is granted not for the image itself, but for the modifications made using tools like Photoshop. Consider recent examples in the United States, such as Stephen Thaler and "Theatre D'Opera Spatial," where no copyright was awarded to an AI-generated image. In contrast, in the case of "Zarya of the Dawn," the copyright was accepted by recognizing the originality in the arrangement and selection of elements, even non-original ones, by the author. Many clients still hesitate to use AI due to the ambiguity surrounding intellectual property, fearing future litigation for copyright infringement. This is understandable, especially when many AI artists use predefined "styles" or directly reference existing artists. This use of AI is impossible for professional purposes. However, some clients resort to lawyers to validate the creative process and ensure compliance with copyright laws. Here is where photographers have a decisive advantage: we can use our own images as prompts and references, thus justifying the originality of our creations and our intellectual property. For example, in Midjourney, it is possible to use your own images in addition to textual prompts and/or as a style reference, two complementary techniques. Imagine a photographer with more than 20 years of experience and their archives: it's an unlimited creative world available to them. They can create thousands of new images, explore new directions, and mix ideas separated in time. Although there is not yet full legal recognition, this process is much more defensible in court since the photographer can prove the exclusive use of their own images and references. This argument becomes essential for clients as it proves an ethical use of AI. AI represents an opportunity for photographers. Just like digital photography 20 years ago, AI makes creation more accessible. However, it is crucial to remember that creation does not happen overnight, and a style cannot be easily copied. You will find examples of my photographic work and its natural evolution towards AI, illustrating what I call "the imprint of the author's personality," the very definition of copyright.

 

Dimitri Daniloff

Photo credtis © Dimitri Daniloff

 

Useful links: 

https://ipkitten.blogspot.com/2023/09/us-copyright-office-and-ai-notice-of.html

https://wan-avocats.com/intelligence-artificielle-et-droit-dauteur-rejet-par-un-tribunal-americain-dune-demande-de-protection-par-le-copyright-dune-image-generee-par-une-intelligence-artificielle/

https://www.village-justice.com/articles/zarya-the-dawn-originalite-des-oeuvres-realisees-avec-intelligence-artificielle,45373.html