I can’t seem to get a straight answer when it comes to the question of owning the copyright to a photo or video taken in a video game. Not being a lawyer, and with the understanding that this is not legal advice, it seems to be largely about what constitutes “Fair Use” under U.S. Copyright law.

Have I made enough commentary about the video game to justify including it in my video? Do I actually own the copyright to a photograph I take in a game? Can I sell copies? Does the licensing agreement I agreed to when I bought the game violate my first amendment rights? (probably not)

[Related Reading: A somber prediction – A.I. will replace all creatives]

These all seem like good questions, but they become even more complicated when you start talking about AI-generated images, video, and even virtual environments. As of this writing, the U.S. Copyright Office has decided that AI-generated images do not have a copyright automatically the way photos do. However, you do seem to own the copyright to the prompt that made it. It all feels very 18% gray at this point. Here is a link for more info.

What if Ai Generated comes to mean anything generated by a software algorithm? After all, it does seem like it would be exceptionally difficult to try to legally define which types of software are tools that help you create copyrighted works and which are not. 

Would a photo I take in the procedurally generated environment of “No Man’s Sky” qualify as partially AI-Generated, and thus have no copyright protection? What about Adobe’s new Firefly software that’s been integrated into Photoshop? What about images created in stable diffusion on my own machine, entirely from a dataset of my own real-world copyrighted photos, and my own written prompts? Do they have copyright protection? Where do we draw the line?

One thing I do know is that many people are focusing on the entirely wrong thing when it comes to A.I. Image copyright. Some artists seem awfully angry that this software can replicate their style and make images so good it looks like the artist did it themselves. They believe that this is a violation of copyright law and does not fall under fair use. In my opinion, not only are they wrong, but this is not where the issue lies at all.

These A.I. image generators allegedly use copyrighted image datasets to train their software, without permission or payment. If it was just a sophisticated software program that could replicate people’s works without stealing their training data, then I feel that would easily fall under fair use. But the fact that these copyrighted works seem to be required for the software to work at all is where the real issue lies.

So do you think it’s ok for me to take your copyrighted works and somehow make money off of it, indirectly, and without your permission? That seems to be happening with these image generators and soon, video.

It seems to me the A.I. Copyright wars have just begun.

About the author

Jonathan Crooks is a street photographer and the pushing force at Prime Studios, a valuable resource for anything and everything film related.