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The “Wild West” of AI Images and Artists’ Rights

By September 20, 2022No Comments
Screenshot of NY TImes article on Jason Allen's AI image that won an art contest.

Screenshot of NY Times article on Jason Allen’s AI image that won an art contest.

By Frank Gallagher, NANPA Marketing, Communications & Blog Coordinator

You might have heard about the image, created by an artificial intelligence (AI) program, that won a prize at the Colorado State Fair. Jason Allen entered a piece, titled Théâtre D’opéra Spatial, in the digital art/digitally manipulated photography category. He made no secret of the fact that it was created using an AI application, Midjourney, but there was a swift and loud backlash. So, what place does AI have in art and in photography?

Is AI art?

Allen considers his piece art, and told the Washington Post that it took him more than 80 hours and 900 attempts to find the right string of keyword prompts before Midjourney was able to render his vision. Perhaps a case can be made that it is art which, after all, can encompass many different materials and techniques. And is issuing a string of commands to an AI application so different than clicking and dragging a series of tools in Adobe Illustrator or Photoshop? Adobe and other post processing programs make use of AI. Topaz even includes the term in the names of its DeNoise AI and Sharpen AI offerings. Maybe for an art fair an AI image is not a problem, but there are other issues that AI raises.

As reported by PetaPixel, PurplePort, a website built around photos of models and whose members are models and freelance photographers, has decided to ban AI-created images. One can imagine Nature Photographers Network and other, photography-centric organizations, following suit. It would be hard to argue that something that never was a photo should be considered photography, and including purely AI-generated images in a photography forum or contest seems wrong. But where to draw the line is a question most photo websites, contests, and even camera clubs will have to grapple with soon.

Are AI images harming photographers?

A second issue is whether AI images will depress the market for photography. If a client can use an AI application to create an image, why would they need the services of a photographer? There are already thousands of AI-generated images for sale or licensing in stock sites like iStock and Adobe Stock. Still, there are instances where a photo is essential, such as documenting wildlife or changing landforms, or in conservation efforts, but maybe not in advertising. To all the other challenges of making a living as a photographer you can now add AI.

How AI works and how it harms artists

Third is how AI applications work. Mindjourney and others are created by examining millions of images that are already online and then developing algorithms to recognize relationships and patters in order to duplicate them. The artists whose work is being used to train the AI software are not compensated, yet the software may wind up copying their work.

In the UK, big tech is backing an exclusion to the UK’s data mining law. As part of this proposed change, AI and other machine learning engines would be able to mine all images posted online, copyrighted or not, for any use, by anyone. The current regulations only permit non-commercial machine analysis of content and only if the user has legal access to the material, such as through a subscription, acknowledges the source(s), and does not resell or reuse the data for other purposes. The Association of Photographers is objecting because photographers will lose money from image licensing and sales as increasingly sophisticated AI apps, trained on their images, become the competition.

As the reporter, Alex Baker, wrote, “We’re currently in the Wild West … no one has really figure out the copyright implications of AI-created images.”

Frank Gallagher is a landscape and nature photographer based in the Washington, DC, area who specializes in providing a wide range of photograph services to nonprofit organizations. He serves as NANPA’s Interim Marketing and Communications Coordinator and manages NANPA’s blog. He can be found online at frankgallagherphotography.com or on Instagram @frankgallagherfoto.