A number of artificial intelligence image generators have seen a rise in popularity lately due in part to the increasing availability of access to various platforms. Their ability to generate images from text prompts raises numerous possibilities and questions, not the least of which is who “owns” the images created by these artificial intelligence platforms? The U.S. Copyright Office has already ruled that these images lack the requisite “human expression” to be eligible for copyright protection, but this decision is subject to review by the courts and could be addressed by the legislature. A few countries, such as Australia and South Africa, have determined that “AI” creations are eligible for patent protection, so it may not be out of the realm of possibility to see a computer treated as an “author” for purposes of a copyright registration. However, in the meanwhile, it may be difficult to assert exclusive rights to an “AI” generated image as any such exclusive rights may depend heavily on the facts of the case.

A cottage industry of “AI Whisperers” has also cropped up via online marketplaces where one may purchase the services of one of these “Whisperers” to write prompts for “AI” image generators, apparently to achieve greater results. Historically, however, the kind of short phrases and descriptions that constitute a typical text prompt for one of these “AI” image generators have not been eligible for copyright protection either. Accordingly, it may be important to ensure that proper contractual obligations are set in place before selling a prompt.