When contacted for comment, the Pixelz.ai team told TechCrunch that they’ve filtered the model’s training data for profanity, hate speech, and “illegal activities” and block users from requesting those types of images at generation time. The company also said that it plans to add a reporting feature that will allow people to submit images that violate the terms of service to a team of human moderators. But where it concerns intellectual property (IP), Pixelz.ai leaves it to users to exercise “responsibility” in using or distributing the images they generate — grey area or no.
“We discourage copyright infringement both in the data set and our platform’s terms of service,” the team told TechCrunch. “That being said, we provide an open text input and people will always find creative ways to abuse a platform.”
Bradley J. Hulbert, a founding partner at law firm MBHD and an expert in IP law, believes that image-generating systems are problematic from a copyright perspective in several aspects. He noted that artwork that’s “demonstrably derived” from a “protected work” — i.e., a copyrighted character — has generally been found by the courts to be infringing, even if additional elements were added. (Think an image of a Disney princess walking through a gritty New York neighborhood.) In order to be shielded from copyright claims, the work must be “transformative” — in other words, changed to such a degree that the IP isn’t recognizable.
“If a Disney princess is recognizable in an image generated by DALL-E 2, we can safely assume that The Walt Disney Co. will likely assert that the DALL-E 2 image is a derivative work and an infringement of its copyrights on the Disney princess likeness,” Hulbert told TechCrunch via email. “A substantial transformation is also a factor considered when determining whether a copy constitutes ‘fair use.’ But, again, to the extent a Disney princess is recognizable in a later work, assume that Disney will assert later work is a copyright infringement.”
Hulbert believes it’s unlikely a judge will see the copies of copyrighted works in training data sets as fair use — at least in the case of commercial systems like DALL-E 2. He doesn’t think it’s out of the question that IP holders could come after companies like OpenAI at some point and demand that they license the images used to train their systems.
“The copies … constitute infringement of the copyrights of the original authors. And infringers are liable to the copyright owners for damages,” he added. “[If] DALL-E (or DALL-E 2) and its partners make a copy of a protected work, and the copy was neither approved by the copyright owner nor fair use, the copying constitutes copyright infringement.”
The U.S. seems unlikely to follow suit, given the lobbying power of IP holders in the U.S. The issue seems likely to play out in a future lawsuit instead. But time will tell.