As OpenAI announced last week that its art-making AI system DALL-E is now in beta, the company also gave users the good fortune of being removed from the waiting list, which seemed like a great gift. “Starting today,” the company wrote in a post, “users are granted full usage rights to commercialize the images they create with DALL-E, including the right to reprint, sell and sell them.” To be clear , that doesn’t mean OpenAI is give up its own right to commercialize images that users create with DALL-E. Take a look at the Terms of Service and you’ll only find the promise that “OpenAI claims no copyright on any content generated by the API for you or your end users.”
By giving users commercial usage rights as a precaution, OpenAI circumvents some of the thorny intellectual property issues raised by this technology – which creates original images in a variety of styles, from photorealism to Picasso. Because some of DALL-E’s images are entirely machine-generated, and the user only contributes an idea via text prompts, the results are likely not copyrighted at all. That would put them in the public domain where everyone and no one “owns” them.
Images created with the Inpainting feature (which allows users to edit images they upload, such as instructing the AI to inject a smiling corgi into a Renaissance tableau of their choice) could include more expressive user options. Some images created using the inpainting feature may contain significant human authorship to be eligible for copyright protection, while others may not. While the announcement of OpenAI’s commercial use is exciting, it could remove some of the leverage artists should be using on the law to clarify and expand the boundaries of copyrighted human-machine collaborations. As such collaborations become more common, the novel concerns they raise should be addressed head-on.
Aside from the issue of copyrightability, OpenAI is signaling to users that they can freely market their DALL-E images without fear of receiving a cease and desist letter from a company that could hire a team of lawyers to support them if they wanted to for “a portrait photograph of a parrot sipping a fruity drink through a straw in Margaritaville.” But the platform gives and the platform takes away. The Terms of Service also alerts users that OpenAI “may modify these Terms or suspend or terminate your use of the Services at any time.”
If DALL-E and similar technologies become widespread, the impact on artistic production itself could be far-reaching. Artists who rely on DALL-E will be left with nothing if OpenAI decides to reassert its rights. While relatively few artists today integrate AI into their practice, it’s easy to imagine that future generations will associate creativity with issuing a simple command to a machine and be amazed by the surprising results. Public school systems are already replacing textbooks with digital content—programs that have retained something of an arts education might well be tempted to skip the clutter and expense of watercolor classes and turn to AI image generators as they become more widely accessible and affordable.
There are other reasons to worry about the prospect of tech companies like OpenAI controlling key means of artistic production in the future. Rightfully suspicious of the technology used to create deepfakes and other “harmful generations,” OpenAI bans “political” content, as well as content that is “shocking,” “sexual,” or “hateful,” to name a few of the company’s content to name extensive categories of prohibited images. While great artists have always found ways to use limitations to their advantage, much of our most astute and essential visual art would be unthinkable under OpenAI’s content limitations. The pop-grotesque presidential portraits by Peter Saul could be described as too political. Philip Guston’s take on Ku Klux Klan imagery might be viewed as too hateful, David Wojnarowicz’s AIDS-era outrage too shocking, and Kara Walker’s violent antebellum silhouettes too sexual. DALL-E’s limited visual vocabulary is deliberately benign and accordingly rather impoverished. In its current form, DALL-E is an impressive toy, but ultimately not a medium for meaningful cultural expression.