AI Images and IP Problems: Who Owns an Artificially Generated Image?

by Gabrielle Beeferman

            Artificial Intelligence (“AI”) image creating software, such as Dall-E 2 and, has been some of the most popular programs among Twitter users this past summer. Combining the user’s imagination alongside the software’s capabilities, several creative images have been displayed across Twitter dashboards. Some examples include “Spongebob Squarepants Shopping for a TV at Best Buy,”[1] and the “Saul Goodman Beanie Baby.”[2] These programs “learn” using connections between millions of images and text, and then can generate an image for nearly any prompt given.[3] While AI image creating software can cut images and create its own materials, often these programs include copyrighted materials when learning and when generating images.[4] The use of copyrighted images to “teach” these programs opens the door to a litany of possible legal issues.[5]

Notably, artists are concerned that AI-users and companies are using their copyrighted works to teach their software without credit or licensing.[6] When an artist creates art, the artists’ copyright to that artwork is usually created automatically.[7] The concern that artists, especially independent artists, have is that their works may be utilized by AI-generating imaging without being licensed by the AI users. [8] Further, there is question of whether AI-created artwork can be considered transformative enough to fall under the fair use clause of the US Copyright Act.[9]

AI-created images cannot be copyrighted.[10] This is because if someone wants a creation to be copyrighted, it must be created by a human.[11] However, DALL-E recently authorized users to monetize creations made with their software.[12] Similarly, intends to allow its users to mint their creations into sellable NFTs.[13] Currently, there have been no lawsuits regarding programs like DALL-E, but as AI progresses and the creations stray more into recognizable copyrighted material, entities such as Disney and Viacom may set their sights on AI-Generated artwork, both for how the AI learns and for what it creates.

[1] Brian Cronin (@briangcronin), Twitter (July 12, 2022, 12:25 PM),

[2] Weird Dall-E Mini Generations (@weirddalle), Twitter (Aug. 17, 2022, 8:54 AM),

[3] Kyle Wiggers, Commercial image-generating AI raises all sorts of thorny legal issues, TechCrunch+ (July 22, 2022, 9:08 AM EDT),

[4] Id.


[6] Luke Plunkett, AI Creating ‘Art’ Is an Ethical and Copyright Nightmare, Kotaku (Aug. 25, 2022, 7:30 PM),

[7] 17 U.S.C.S § 201(a)(Lexis 2022).

[8]  Plunket, supra note 6.

[9]  Kyle Wiggers, Commercial Image-Generating AI Raises all Sorts of Thorny Legal Issues, TechCrunch+ (July 22, 2022, 9:08 AM EDT),; see also 17 U.S.C.S. § 107 (Lexis 2022).

[10] Jane Recker, U.S. Copyright Office Rules A.I. Art Can’t Be Copyrighted, Smithsonian Magazine (Mar. 22, 2022, last visited Aug. 31, 2022),

[11] Letter from United States Copyright Office Review Board to Ryan Abbott, Esq., Re: Second Request for Reconsideration for Refusal to Register A Recent entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071) (Feb. 14, 2022) (on file with U.S. Copyright Review Board) (

[12] OpenAI, (last visited Aug. 31, 2022).

[13] Wombo.eth (@WOMBO), Twitter (Dec. 5, 2021, 11:07 AM),