Jim Flynn Quoted in “Who Owns DALL-E Images? Legal AI Experts Weigh In”

When OpenAI announced expanded beta access to DALL-E in July, the company offered paid subscription users full usage rights to reprint, sell and merchandise the images they create with the powerful text-to-image generator.

A week later, creative professionals across industries were already buzzing with questions. Topping the list: Who owns images put out by DALL-E, or for that matter, other AI-powered text-to-image generators, such as Google’s Imagen? The owner of the AI that trains the model? Or the human that prompts the AI with words like “red panda wearing a black leather jacket and riding a motorcycle, in watercolor-style?” …

Contradictory statements from Open AI on DALL-E?

Still, some experts say Open AI’s statements about the use of DALL-E – that the company owns the images but users can commercialize them – is confusing and contradictory. 

Jim Flynn, a senior partner and managing director at Epstein Becker and Green, said it struck him as “a little give with one hand, take away with the other.” 

The thing is, both sides have fairly good claims and arguments, he pointed out. “Ultimately, I think the people who own this AI process make a fairly good claim that they would have some ownership rights,” he said. “This image was created by the simple input of some basic commands from a third party.”

On the other hand, an argument could be made that it is similar to using a digital camera, he added — where images are created but the camera manufacturers do not own the rights to user photos.

In addition, if those who own text-to-image generators own image output, it would be “viscerally unsatisfactory” to many who believe that if they buy or license a process like DALL-E, they should own what they created — particularly if they paid for the right to use it in the exact same manner as the AI company promoted them to use it. 

“If I were representing one of the advertising agencies, or the clients of the advertising agencies, I wouldn’t advise them to use this software to create a campaign, because I do think the AI provider would have some claims to the intellectual property,” he said. “I’d be looking to negotiate something more definitive.”

The future of DALL-E image ownership

While there are arguments on both sides of the DALL-E ownership question, as well as many historical analogies, Flynn does not necessarily think the law needs to change to address them. 

“But will it change? Yes, I think it will, because there are a lot of people, especially in the AI community, who have some interest that isn’t really related to copyright or intellectual property,” he said. “I think the interest in it isn’t being driven because of complex legal issues but to push the issue of AI as having a separate consciousness. Because so much else in our society finds its way to court to get determined, that’s why these cases are out there.”

Flynn predicts a shakeout, a new consensus around who owns AI-generated creations, that will be driven by economic forces that the law follows. “That’s what happened with things like email correspondence and legal privilege, and frankly, that’s what happened with the digital camera.” 

He said he would tell clients that if they want to use AI-generated creations, it will be best to use a purveyor like Shutterstock that offers a certain number of licenses for an annual fee. 

“But the reality is, you’re also going to get big advertising agencies that are probably going to either develop their own [text-to-image AI], or license AI at the institutional level from some API provider to create advertising,” he said. “And the ad agency will pay the AI creator some amount of money and use it for clients. There certainly are models out there that this fits with.”