Michael E. Byczek
Attorney at Law

Generative AI Art

Michael E. Byczek advises clients about generative AI artwork and AI copyright legal issues.

DALL-E 2 from OpenAI is one platform for users to generate AI artwork. The company describes that platform as an "AI system that can create realistic images and art from a description in natural language".

OpenAI advises users not to mislead your audience about AI involvement:

1. "When sharing your work, we encourage you to proactively disclose AI involvement in your work."

2. "You may remove the DALL-E signature if you wish, but you may not mislead others about the nature of the work. For example, you may not tell people that the work was entirely human generated or that the work is an unaltered photograph of a real event."

3. "If you'd like to cite DALL-E, we'd recommend including wording such as This image was created with the assistance of DALL-E 2 or This image was generated with the assistance of AI."

With regard to ownership of content, OpenAI states "As between you and OpenAI, and to the extent permitted by applicable law, you (a) retain your ownership rights in Input and (b) own the Output. We hereby assign to you all our right, title, and interest, if any, in and to Output."

Since multiple users may input similar keyword criteria, OpenAI states "Due to the nature of our Services and artificial intelligence generally, output may not be unique and other users may receive similar output from our Services. Our assignment above does not extend to other users' output or any Third Party Output."

One question people may ask is whether they can profit from generating AI artwork. OpenAI states: "Subject to the Content Policy and Terms, you own the images you create with DALL-E, including the right to reprint, sell, and merchandise".


Michael E. Byczek used OpenAI DALL-E 2 to generate AI images that show a robot using a computer on November 28, 2023. Just like a search engine, the keywords used for input determine the result.

DALL-E 2 provides four image options for each input. You may also select a particular result and request that image be used to generate similar images. The following examples show representative examples for each input and result.

Input Scenario 1

humanoid robot sitting at a desk working on a computer

Input Scenario 2

humanoid robot, sitting at a desk, working on a computer, residential surroundings

Input Scenario 3

humanoid robot, sitting at a desk, working on a computer, desk in a living room, holiday decorations on the window, paper and pen on desk, robot typing on keyboard

Input Scenario 4

futuristic humanoid robot, high detail, living in an American residential home, lifelike, working at desk, using laptop, printer on desk, reference book on desk open halfway

This image was used to generate four variations. One is shown below.

Input Scenario 5

humanoid robot, sitting on a chair, typing on a computer keyboard, computer monitor shows a word processor document, full body perspective, technical design, high detail, desk situated in a home office, desk located next to window, holiday decor on window

Two of the four images are show below.


U.S. Copyright Law

The U.S. Copyright Office will not register purely AI-generated art. One recent refusal was based on the evaluation that a particular work could not be registered because it was made "without any creative contribution from a human actor".

Some AI-generated material could be registered if there is sufficient human authorship. One example is a human that arranged AI-generated content in a creative way. In such a claim, the work as a whole might be considered an original work of authorship.

The Copyright Office states "when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the traditional elements of authorship are determined and executed by the technology, not the human user".

When submitting an application for copyright, applicants are advised to disclose the inclusion of AI-generated content with an explanation of the human author's contribution. This explanation determines whether the federal government will approve the copyright and what the registration protects.


Copyright and Artificial Intelligence. U.S. Copyright Office. https://www.copyright.gov/ai/ [Accessed 11/28/2023]

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