What is owed to the creators of the original material? In January, a group of artists sued London-based Stability AI, a maker of image-generating software, arguing that it infringed on their copyrights by using their work in training data and creating derivative works. The cartoonist Sarah Anderson, who is part of the lawsuit, told The New York Times that she believed artists should opt in to having their work included in such data, and should be compensated for it. Getty Images is also suing Stability AI in Britain and the United States for what it calls “brazen infringement” of millions of photos. Getty argued that the theft is particularly offensive because it has agreements to license data for machine learning. Stability AI has not yet responded to the complaints.

Does “fair use” apply? Copyrighted works can be used without permission for commentary, criticism or other “transformative” purposes, and robots have traditionally been exempt from liability. But “courts in the future won’t be so sympathetic to machine copying,” wrote Mark Lemley, the director of a Stanford Law School program that focuses on science and technology, in the Texas Law Review with a former colleague, Bryan Casey. Lemley is calling for a new “fair learning” standard for using copyrighted material in machine learning. It would include the question: What is the purpose of the copying? If it’s to learn only, that may be permitted, but if the intent is to reproduce the work, it will not be. Not every machine learning data set would qualify for the protection. New tools also raise questions about who has liability for infringement — the user prompting the machine, the company that programmed the tool or both?

Who owns the output of generative A.I.? For now, only a human’s work can be copyrighted, but what about work that partly relies on generative A.I.? Some tool developers have said they won’t assert copyright over content generated by their machines. In February, the Copyright Office rejected a copyright for A.I.-generated images in a graphic novel, though the writer argued that she had made the images via “a creative, iterative process” that involved “composition, selection, arrangement, cropping and editing for each image.” The government compared use of the A.I. tool to hiring an artist. But the lines may blur as the use of such tools becomes more common. Like the tools, the intellectual property issues are a work in progress that will only get more complex. — Ephrat Livni

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