Written by: Juanice Jooste
8 December 2024
How Does Artificial Intelligence & Digital Art Affect Copyright Laws?
Digital art has evolved into a revolutionary medium that marries creativity with advanced technology. As South African artists increasingly harness the power of software, social media, and artificial intelligence (AI) to craft unique digital artworks, new legal questions arise, particularly about ownership and copyright. At Burger Huyser Attorneys, we specialise in intellectual property and can guide you through this evolving legal landscape of AI-generated art and digital rights. Digital art in South Africa is primarily governed by the Copyright Act 98 of 1978, but what about artificial intelligence-generated art (hereinafter “AI-generated art”)?
Some development is needed in our legislation to address this specific topic; however, this article aims to provide guidance on the subject.
Digital Art vs Programs: What’s The Difference?
According to the Copyright Act 98 of 1978, every creation is the work of an author. Whether it’s a book, a piece of music, or a sculpture, there is always a story behind it and someone who decided to bring it to life. The Copyright Act 98 of 1978 supports this view, as Section 1(iv) outlines the different categories of authors. These authors range from an individual who makes or creates an art piece to a corporation that broadcasts signals.
Under this definition of an author, we find both artistic works created using a computer program and computer programs written by people.
“Artistic work” is defined in the Copyright Act 98 of 1978 as:
(a) paintings, sculptures, drawings, engravings, and photographs;
(b) works of architecture, being either buildings or models of buildings; or
(c) works of artistic craftsmanship or works of craftsmanship of a technical nature not falling within either paragraph (a) or (b); (as amended in the 1992 Copyright Amendment Act)
Against the backdrop that artistic works and computer programs fall under different categories, but both are written by an author, we can explore the concept of combining the two, for example:
Artistic Works
The Copyright Act 98 of 1978 states under Section 2(1)(c) that artistic works are eligible for copyright, and further under Section 2(2), when these artworks will not qualify. For example, when the artwork lacks sufficient effort or skill to create the impression of being an original and new piece, it will not be eligible for copyright.
Therefore, if you were to repaint Van Gogh’s Starry Night or Salvador Dali’s The Persistence of Memory to sell as your own, you would not be able to copyright it, as it lacks originality and would rather be an adaptation of that piece of art.
Computer Programs
The Copyright Act, as amended in 1992 and as stated above, mentions that an author also includes any person who creates a computer program that generates computer-generated content.
This, of course, includes the use of a programming language or code. This means that any computer program you write belongs to you. For example, Microsoft belongs to Bill Gates and Paul Allen because they created the original programs.
Why Does The Ownership Of Ai-Generated Content Matter?
- Defining Ownership: Digital artists risk losing control over AI-generated works if legislation doesn’t evolve.
- Protecting Original Ideas: As technology drives creativity, safeguarding your ideas—from concept to finished product—becomes critical.
- Business Assets: Your unique artistic style or approach can be a valuable asset. Understanding how copyright and AI relate is key to leveraging this asset commercially.
What Happens In Terms Of Copyright When We Combine Ai And Digital Art?
AI-generated art occurs when prompts given by an artist or user lead an AI system to produce a piece of digital art. The central question: Who owns the final creation—would the art that the AI generated be the person’s art who made it, or would it be the AI’s art? When this question was asked of an AI operating system, the answer received was, albeit incorrect, quite interesting.
AI’s Perspective
- The AI operating system believes that our legal system has a grey area regarding this. In its opinion, the art would still belong to the artist because the person oversees the creative process of the prompt, and the art is therefore similar to that of a film director.
- The AI operating system also mentioned that you could most probably face copyright infringement because the art could look or resemble the original art piece.
- A follow-up question was then sent to the AI operating system, requesting it to explain how the system came to this statement. The AI operating system provided a list of factors it had taken into consideration to formulate its answer, including:
- The legal interpretation of the Copyright Act 98 of 1978,
- International precedents such as the US Copyright Office,
- And ethical considerations where the ATo behind every artistic work is an AI-created author.
- Now, regarding the above, we know that AI does not have independent thought but is programmed to interpret specific things in a particular way. Therefore, this AI program was programmed to give this specific response by its programmer.
Expert Opinions
To fully investigate the position of AI-created digital art, the same set of questions was presented to Burger Huyser’s patent consultant, Mr. Gerber.
- Mr. Gerber believes that the art would not be the artist’s art but that of the program. The reasons for the previous statement include the definition of art as well as that of a program, and the Copyright Act 98 of 1978.
- Why does Mr. Gerber argue that the generated pieces belong to the AI’s programmer? The AI—not the user—executes the complex creative process. Even if a user invests time refining prompts, the software’s algorithms ultimately produce the art, suggesting it’s the software’s “original effort.”
What Is The Current Position Of The South African Legal Framework Regarding Ai-Generated Content?
In practice, we lack local legislation about AI-generated content. The Copyright Act 98 of 1978 in South Africa does not explicitly address AI-generated art, making it an uncertain legal territory for both artists and programmers.
Existing Laws
As mentioned above, for art to fall under the Copyright Act 98 of 1978, it needs to be credited with sufficient skill and effort to give the impression that it is a new piece. Seeing as the user of the AI operating system can easily create digital art just by asking the operating system to generate the art for them, they cannot be credited with the sufficient skill and effort required to create art. Therefore, the product generated by the AI operating system will belong to the programmer of the site.
A follow-up question to this position is, what if the author entered more than one prompt to create an art piece and spent significant time defining the digital art program that changed the position of who the art piece belongs to?
In this case, there is still a lack of sufficient skill, as the art piece generated was based on the same artist’s creative process, but the AI program did the work of creating the art and not the artist.
Interestingly, the prompts entered into the system can be considered as belonging to the user, as the necessary skill and effort to create the idea and concept came from the user. The artworks resulting from those prompts, however, do not belong to the user. They were technically created by AI, as the AI program had to put in the necessary effort to create the art.
The aforementioned could be seen as similar to a client requesting a commissioned artwork from an artist. The client indicates and specifies what they want and/or need, and the artist applies his/her skill and efforts to create the artwork to the client’s specifications.
What Are The Grey Areas Of The South African Legal Framework Regarding Ai-Generated Content?
One thing that the response from both the AI program and Mr. Gerber had in common was the fact that our Copyright Act 98 of 1978 caused a “grey” area.
Mr. Gerber confirmed that our Copyright Act does not make sufficient provision for art generated by AI or anything relating to AI in general. An example of this could be a situation where an artist inserts word prompts until the AI creates the necessary art piece, where those word prompts were original ideas of the artist, and the piece created indicates sufficient effort from the artist, which then makes the art piece an original.
Artificial intelligence is reshaping how art is conceived and executed, creating fascinating yet complex legal questions. For South African digital artists, it’s crucial to grasp the Copyright Act 98 of 1978’s stance on artistic works and programming, and how AI blends these domains in novel ways.
If you’re using AI to generate art or develop software, you need to know how the law views your rights and obligations. The future of digital creation holds immense promise, but it also demands solid legal planning to protect your original concepts and craft. Original ideas have become some of the most important in the world. With a technology-driven world to enhance our lifestyles and improve the world for every person, it is of utmost importance to protect your original ideas.
Ready to secure your digital creations? At Burger Huyser Attorneys, we offer expert legal advice on copyright, AI-generated content, and all aspects of intellectual property. Contact us today to explore ways to protect your work and transform your creative innovations into valuable business assets.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
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