If you use Adobe Generative Fill to process one of your photos, do you own the copyright? If you add, delete, or expand your image, is it still your image?
What happens when you use Photoshop Generative Fill?
You’ve probably heard of Generative Fill. Adobe included Glowworm (AI generated art app) in Photoshop (beta). It allows you to add, remove and expand your image by typing text prompts. Firefly is trained on Adobe Stock’s hundreds of millions of high-resolution professional licensed images. Adobe says this ensures that Firefly doesn’t generate content based on other people’s work, brands, or intellectual property.
However, we also know that as part of Adobe’s Content data feature, AI images created in Photoshop are encoded with an invisible digital signature that indicates whether they are human-made or the product of AI.
Above: The photo on the left is a photo I took. The photo on the right is largely enlarged using Adobe Generative Fill. Do I still have the rights to this photo?
But if you add, delete, or enhance your photo with Generative Fill, do you still own your image? Can you still copyright it?
If someone takes your image and expands its size to create a much larger image, can they claim it as recontextualized, new art? Can they copyright that?
What does the United States Copyright Office say about this?
2018, The Copyright Office rejected a copyright claim because the work “contained no human authorship”. They further ruled that it was made “without any creative contribution from a human actor.”
Flash forward to 2023. The Copyright Office approved a graphic novel. They concluded that a “text written by humans combined with images generated by the AI service Midjourney constituted a copyrighted work”.
Don’t get too excited just yet. They also ruled that the individual images themselves could not be copyrighted.
So far, the Copyright Office has been consistent that copyrights are granted only if the image is the product of human creativity. They even state that the term “author” excludes “non-humans”.
You can read more about their statements about artificial intelligence in the federal register.
What else does the Copyright Office do?
The Copyright Office currently examines “copyright and policy issues raised by artificial intelligence (AI) technology, including the scope of copyright in works generated using AI tools and the use of copyrighted material in AI training. After convening public listening sessions in the first half of 2023 to gather information on current technologies and their impact, the Bureau will publish an investigative notice in the Federal Register.”
Until then, it looks like it’s the Wild West. Artificial intelligence and the programs that use it are moving faster than the Copyright Office can keep up with.
Photoshop (beta) – no commercial use
Please note that as of this writing, Generative fill is not for commercial use in Photoshop (beta).
What is your opinion? If you use generative fill, do you feel like you own your image? Is there a point where you feel that someone no longer owns their image? If someone makes the size of your image much larger, can you still claim ownership?