Artificial intelligence (AI) is clearly a very hot topic now with many creatives understandably worried about the impact that text to image models could have on their business. When it comes to AI, Intellectual Property (IP) and Professional Indemnity there are some fundamental aspects to consider, we’ll explain them for you here.
First of all, how do AI text to image models work?
AI models scrape information from the web and use them to produce large data sets which can be used to provide users with whatever output they’ve requested. If you ask AI to produce an image of a cat, it will use all the images in its data set labelled as cat to produce an image which is an approximation of those images.
While these models will often produce convincing images of the subject matter in question, errors and biases in the data set can lead to them producing outputs that aren’t quite right or even that are altogether inaccurate. This can be particularly problematic where violent or pornographic images are mislabelled and corrupt the dataset.
Can an AI model use my Intellectual Property (IP) to generate an image?
AI models typically scrape data from the web without permission and do not credit artists when their work is used to produce an output which we would argue is a flagrant breach of the artist’s IP. However, it can be very challenging for an artist to prove that their work has been used in the making of an output, unless the output bears a striking resemblance to the original piece of work. This makes it very challenging for the artist to bring a claim.
If I use AI in my work, could someone bring an IP claim against me?
Most photographers will have been using a form of AI in their work for many years. For example, Photoshop’s editing software is something that we might now class as AI. If you are using AI to simply enhance or adjust your own image or video, it is incredibly unlikely that a claim could be brought against you. We do also see AI used during pre-production to generate shoot decks or proposals for clients. Provided these are not distributed in the public domain, it is difficult to see how a claim relating to these pieces of work could arise.
In instances where you are using AI models to generate an entirely new image, the risk is much higher. Although many AI platforms give users the right to freely use their outputs, those outputs may be in breach of a third party’s IP. If the image generated is a direct copy or very similar to an existing piece of work, it is possible that it may be breaching that individual’s IP.
Will my Professional Indemnity policy cover IP claims relating to AI?
Professional Indemnity is a defence policy only. As a result, it will NOT cover your costs to pursue a claim against a third party who you feel has breached your IP.
However, your Professional Indemnity policy IS likely to cover claims against you alleging that you have breached a third parties’ IP by using an AI output.
It’s worth pointing out that at present, Professional Indemnity policies in the UK typically do not have AI exclusions. This is becoming more common in the US and it is possible that the UK insurance market will follow suit in the near future.
