#copyright

From Prompt to Picture: AI Art and the Ability to Copyright It

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Google DeepMind on Pexels.com

By: Alex Okun

As a general concept, Artificial Intelligence (“AI”) is not new: “chatbots” have been available for decades, and virtual assistants like Apple’s “Siri” first appeared 15 years ago. However, the latest iteration of AI – “Generative AI” – takes the concept one step further. Generative AI platforms can produce entirely new text or images based on prompts as short as a sentence. A new world of “AI art” has emerged online, and now many users are hoping to monetize their creations. However, consumers will not purchase a work from the creator if others can freely distribute copies of it. Effective commercial use requires the right to prevent third parties from doing the same, and to do that, one must first obtain a valid copyright.

Copyright Law’s “Authorship” and “Originality” Requirements

For a work to be copyrighted, it must be an “original work of authorship fixed in any tangible medium of expression.” A “work of authorship” requires an author, and the courts have consistently held that an “author” must be human. “Originality” requires that an author contribute “a modicum of creativity” to their work. However, courts have acknowledged that machines can be utilized to create a work without jeopardizing copyrightability. In the landmark case Burrow-Giles v. Sarony (1884), the Supreme Court held that a photograph could be “original” (and thus copyrightable) so long as it represents the photographer’s “intellectual conceptions.” While it is relatively clear when a camera manifests the user’s artistic choices, ambiguity arises when the machine also plays a role in creative decision-making. There is no question that AI-generated art is original; to be copyrightable, the question is where the originality came from.

Even if a work has sufficient originality, copyright will only protect the parts of it that manifest the author’s creativity. In Urantia Foundation v. Maaherra (1997), the Ninth Circuit Court of Appeals held that “divine messages” in a book could not be copyrighted because they originated from a deity rather than from a human being. Similarly, the United States Copyright Office (“USCO”) in 2023 approved the copyright of an author’s comic book but denied protection to an AI-generated image depicted in it.

One route to copyrighting AI art is to include it in a compilation of works. A compilation can be copyrighted if the author selects or arranges works in a way that requires creative discretion (like selecting the “best poems of the year” or arranging art pieces thematically). The USCO acknowledges that compilations of AI art can have sufficient originality, but each work included cannot obtain a copyright absent sufficient human authorship. Thus, copyright authorities must determine how much creativity a user must contribute to an AI-generated image to be copyrightable.

On the docket

Several lawsuits have been brought against the USCO for denying copyright claims by users of Generative AI applications. In 2022, Dr. Stephen Thaler sued the USCO over its determination that he could not copyright an image produced by his Generative AI application, “Creativity Machine.” Thaler did not claim to be an “author”; instead, he listed Creativity Machine as his employee, who had created the piece at his direction. The District Court upheld the USCO’s decision in 2023, finding that the AI application could not be the “author” because it is not human. Thaler appealed the ruling in 2024 to the DC Circuit Court of Appeals, but hearings have not yet been scheduled.

Whereas Thaler was focused primarily on the viability of non-human “authors,” a case filed in 2024 illustrates the legal issues arising from the “originality” requirement for AI users. In September 2024, Jason Allen sued the USCO for denying copyright protection for an award-winning image he created using the popular AI application Midjourney. He argues that the art was only partially generated using AI and that his contributions to the work justified a finding that it was sufficiently “original” to be copyrighted. According to filings, Allen inputted “at least 624 text prompts” to the application before the image created what he envisioned. Initial hearings took place in December 2024, but the court has not yet reached a decision.

Policy Changes

Distinguishing “machine-assisted” artistic works from “machine-generated” works has been a persistent issue for the USCO in the past several years. In 2023, the USCO issued ambiguous guidance that stated copyright protection in AI art depends “on the nature of human involvement in the creative process.” On January 29, 2025, the USCO issued clarifying guidance to resolve the confusion. It states unequivocally that “prompts alone do not provide sufficient human control to make users of an AI system the authors of the output.” To justify this policy, USCO pointed out that entering duplicate prompts multiple times can result in varying results. It also rejected the prospect of “revising prompts” (when a user enters subsequent requests to alter the initial image produced), likening it to “re-rolling the dice.”

The 2025 USCO guidance also distinguished mere prompts from “expressive inputs,” in which the user uploads media to the AI application and then asks it to modify the material in some specific way. Expressive inputs can merit greater protection because the user exercises greater control by giving the AI model a “starting point” rather than generating images from basic text. However, the USCO reaffirmed its view on severing the AI alterations from the author’s work and only protecting the user’s original work’s “perceptible” aspects in the new image. Of course, this categorically excludes AI-generated content based on media not created by the user.

In contrast, the United Kingdom’s (“UK”) copyright law specifically allows copyrighting “computer-generated” artwork and defines the author as the person who makes the “arrangements necessary” for its creation. This phrase leaves legal experts unsure whether this would mean the AI application’s programmers or its users would be deemed “authors” of AI art. However, the answer to this question may be of little consequence: many of the top Generative AI companies (including OpenAI, Midjourney, and Adobe) expressly grant their users full ownership of what they create. If US lawmakers chose to grant AI companies copyright protection in AI art, users might simply select the applications that promise to transfer ownership to them.

Conclusion

As US media companies increasingly rely on Generative AI, the ability to claim ownership in AI-generated work is a growing risk to business productivity. Resolving this issue is particularly important to content creators because production studios may need to continue relying on artists if they cannot copyright AI-generated content. Despite the greater specificity in the USCO’s new guidelines, the efficacy of these policies remains in question. The 2025 guidance is the second installment of a three-part report initiated in 2023, and it is unclear whether Congress or the Trump administration will attempt to modify these policies. Moreover, federal courts have the final say on these issues because the requirements of “authorship” and “originality” are constitutional questions. So long as this legal ambiguity persists, the “AI revolution” in the art industry will likely need to wait.

Copy, Paste, Profit: How Shein Used AI to Create a Fast Fashion Empire

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by cottonbro studio on Pexels.com

By: Hannah Gracedel

Picture this: you’re scrolling through a fast-fashion site, searching for the perfect fit for your upcoming Sabrina Carpenter concert when one of the designs looks eerily familiar. You realize it’s a piece you created, and now it’s being sold without your permission. This is Shein—a global fast-fashion powerhouse that not only keeps up with trends but seems to predict them before they even happen. But how does Shein manage this impossible feat? And at what cost to the original creators behind those trends?

Background: Who Is Shein?

Shein (pronounced “SHE-in”) is a China-based fast-fashion retailer founded in 2008 that’s taken the online shopping world by storm. For those unfamiliar, “fast fashion” is a business model centered on producing trendy, affordable clothing at lightning speed. This approach meets the demand for low-cost, stylish clothing while sacrificing quality, environmental sustainability, and, often, ethical production standards. With a valuation now soaring past $100 billion, Shein is easily among the most valuable private companies in the fashion world. And its popularity is not slowing down. Currently, Shein’s website boasts more than 600,000 items, with a staggering 10,000 new products added every day.

So, how does Shein pull this off? The answer lies in their use of artificial intelligence (AI), a secret weapon that allows Shein to create and upload new designs faster than anyone else. But with AI comes controversy.

Shein’s Recipe for Rapid Production: AI-Powered Design

At first glance, Shein’s ability to churn out designs seems like a stroke of tech genius. Shein’s AI systems scan the internet for emerging art and design trends. Once they spot something popular, the systems whip up new products based on its searches. Here’s the kicker: some of these products are near-identical copies of original art found on the web from independent artists or designers. The process is so automated that there’s doubt that humans are even involved in the design process.

So, where’s the problem? By replicating designs without acknowledging the original creators, Shein often runs into a crucial issue: copyright infringement.

What Is Copyright Infringement?

Copyright infringement occurs when someone uses someone else’s original work without permission. Even if the artist has not registered their work with the copyright office, they can still have grounds for a legal claim. Certain legal elements must be met to prove infringement, including proof that (1) the work is original, (2) the infringer had access to the original work, and (3) the copied work is “substantially similar” to the original. When it comes to Shein, the “substantial similarity” requirement can become painfully obvious—especially if an artist can prove that the design was lifted straight from their work.

How Is Shein Sidestepping Legal Trouble? – The Answer Can Be Found in Their “On-Demand” Model.

Shein’s “on-demand” business model is as ingenious as it is  problematic. The company rolls out new designs in small quantities, watching sales data closely to see if they catch on. If a product becomes popular, Shein ramps up production to meet demand. Otherwise, they quietly retire unpopular product lines.

Why is this “small-batch” approach so effective? First, it reduces overproduction—a common problem in the fashion industry, where unsold items often end up as waste. Second, it saves money, which allows Shein to keep its prices rock-bottom. And third, and most importantly, it may even help Shein dodge legal consequences.

The small-batch approach can make it hard for artists to notice if their designs are being copied, especially when Shein drops thousands of new items every day. Even if a creator does catch Shein using their design, Shein can cease production without much financial loss and potentially settle the issue with minimal expense due to the initial small batch sizes. It’s possible that Shein has even built this risk into their business model, as the profits from unnoticed successful designs likely outweigh the costs of occasional small settlements.

What Can Artists Do If Their Work Has Been Stolen?

Artists who find their work copied on Shein’s site do have some options, though these are often uphill battles. Shein provides an intellectual property (IP) complaint portal on its website, where creators can file a claim if they believe their designs have been infringed. Yet, given Shein’s sheer size and daily output, this system is far from reliable. For artists who feel their complaints are ignored or insufficiently addressed, legal action might be their only recourse.

Currently, Shein faces multiple class-action lawsuits, with artists and designers banding together to confront Shein over alleged copyright violations. If successful, these cases could be game-changers for the fast-fashion industry as they may set precedents for how copyright laws are applied to AI-driven, high-volume retailers like Shein.

These lawsuits are more than just isolated legal cases; they could shape the future of fashion retail by holding companies liable for how they use–and sometimes misuse–AI-driven design. If Shein’s legal troubles escalate, it could impact the company’s plans to go public—something the company has hinted at in recent years. Going public with an unresolved history of copyright disputes could complicate Shein’s appeal to investors and invite even more scrutiny.

Conclusion: The High Cost of Fast Fashion

Shein’s business model has enabled it to dominate the fast-fashion industry, but its approach raises important ethical questions. As Shein continues to test legal boundaries, the fashion industry—and the rest of us—must ask ourselves how much we’re willing to compromise for convenience and low prices. In the end, AI may bring us fashion at the speed of light, but without ethical considerations, it’s just as quick to leave artists and creators behind.

“Road House” Screenwriter Declares War on Amazon

/ Washington Journal of Law, Technology & Arts / Leave a comment

By: Mayel Andres Tapia-Fregoso

On March 21, 2024, Amazon Studios released its latest blockbuster film “Road House,” a remake of the original 1989 action classic. Following its launch on Amazon Prime Video, Amazon’s streaming platform, the studio revealed that as of April 1, 2024, the film reached 50 million viewers. Yet, despite the film’s apparent success, Amazon’s Road House production has been filled with controversy. On February 27, 2024, R. Lance Hill, the writer of the original Road House (1989) screenplay, filed a lawsuit against Amazon Studios and its subsidiary MGM, alleging copyright infringement. Hill alleges that Amazon ignored his ability to reclaim the rights for his 1986 screenplay, disregarding his rights under law.

The premise of Road House is centered on the story of an ex-UFC fighter, played by Jake Gyllenhaal, who is approached by the owner of the Road House bar offering him a second chance at life. Located in the remote Florida Keys, Gyllenhaal leaves his brawling days behind to protect the bar against a criminal enterprise who seeks to develop the land under the Road House for its own ends. 

Under U.S. Copyright law, a writer must wait thirty-five years from the date of the execution of a copyright grant before terminating the grant. After thirty-five years have passed, the writer can terminate the copyright grant by serving notice to the grantee in writing at least two years in advance of the effective date of termination. The copyright grantee’s rights, including the right to create a derivative work, expire upon effective termination of the grant. A derivative work is a work based on or derived from one or more already existing works. Cinematic adaptations of screenplays are considered derivative works. However, an artist cannot terminate the copyright in a work is made for hire which is when the work is created by an employee as part of the employee’s regular duty or when the work is created as a result of an express written agreement between the creator and the party commissioning the work. The party commissioning the work is considered the author and copyright owner.

Hill wrote the original screenplay in 1986 for the film label United Artists (UA), owned by MGM. According to the lawsuit, Hill did not have an employment or contractual relationship with UA when he wrote the screenplay. Hill entered into a “literary purchase agreement” with UA through his personal company, Lady Amos Literary Works Ltd., who owned the rights to the copyright. Therefore, according to Hill, UA only owned the rights to the screenplay for a limited time.

In November 2021, thirty-five years after Hill completed the original Road House screenplay, he filed the necessary petition with the U.S. Copyright Office and notified Amazon of his intent to terminate the grant of the copyright in two years. According to the complaint, Amazon instituted a self-imposed deadline to complete the Road House remake before the copyright in the original Road House screenplay would revert back to Hill in November 2023. The studio began filming the remake in 2023 until the 118-day-long Screen Actors Guild strike took place, pausing production until November 8, 2023. In his complaint, Hill argues that Amazon took “extreme measures” to finish the film by November 2023 at considerable cost by resorting to using artificial intelligence (AI) to “replicate the voices” of the actors in the remake. However, Amazon still completed the movie in January 2024, two months after the copyright reverted to Hill.

An Amazon spokesperson claimed that the allegations in the complaint were “categorically false” including the allegations regarding Amazon’s use of AI to replicate actor’s voices in the film. However, a person close to the studio suggested that if Amazon exploited actor’s voices by using AI to finish filming the remake, it was during the early stages of production. Studio executives insisted that the filmmakers remove any traces of AI in the finished product. Ultimately, the issue in this case will turn on whether Hill wrote the screenplay while under contract with UA or if he worked on it independently when he sold the rights to UA.Hill’s lawsuit is the latest in a stream of lawsuits by screen writers reclaiming the rights to their screenplays created in the 1980s from major film studios. In 2021, Arthur Miller, the creator of the Friday the 13th (1980) screenplay, successfully reclaimed his copyright in the screenplay by defeating Manny Inc., in a lawsuit decided by the 9th Circuit. In that case the court ruled in favor of Miller because it found that the screenplay was not a work made for hire, allowing him to terminate the transfer of copyright. As more time passes, we will likely see more artists seek to reclaim the rights to their work, giving them freedom to reap the benefits of their work long after the work’s initial creation.

(A.I.) Drake, The Weeknd, and the Future of Music

/ Washington Journal of Law, Technology & Arts / 1 Comment

By: Melissa Torres

A new song titled “Heart on My Sleeve” went viral this month before being taken down by streaming services. The song racked up 600,000 Spotify streams, 275,000 YouTube views, and 15 million TikTok views in the two weeks it was available. 

Created by an anonymous TikTok user, @ghostwriter977, the song uses generative AI to mimic the voices of Drake and The Weeknd. The song also featured a signature tagline from music producer Metro Boomin. 

Generative AI is a technology that is gaining popularity because of its ability to generate realistic images, audio and text. However, concerns have been raised about its potential negative implications, particularly in the music industry, because of its impact on artists. 

Universal Music Group (UMG) caught wind of the song and had the original version removed from platforms due to copyright infringement. 

UMG, the label representing these artists, claims that the Metro Boomin producer tag at the beginning of the song is an unauthorized sample. YouTube spokesperson Jack Malon says, “We removed the video after receiving a valid copyright notification for a sample included in the video. Whether or not the video was generated using artificial intelligence does not impact our legal responsibility to provide a pathway for rights holders to remove content that allegedly infringes their copyrighted expression.”

While UMG was able to remove the song based on an unauthorized sample of the producer tagline, it still leaves the legal question surrounding the use of voices generated by AI unanswered. 

In “Heart on My Sleeve”, it is unclear exactly which elements of the song were created by the TikTok user. While the lyrics, instrumental beat, and melody may have been created by the individual, the vocals were created by AI. This creates a legal issue as the vocals sound like they’re from Drake and The Weeknd, but are not actually a direct copy of anything. 

These issues may be addressed by the courts for the first time, as initial lawsuits involving these technologies have been filed. In January, Andersen et. al. filed a class-action lawsuit raising copyright infringement claims. In the complaint, they assert that the defendants directly infringed the plaintiffs’ copyrights by using the plaintiffs’ works to train the models and by creating unauthorized derivative works and reproductions of the plaintiffs’ work in connection with the images generated using these tools.

While music labels argue that a license is required because the AI’s output is based on preexisting musical works, proponents for AI maintain that using such data falls under the fair use exception in copyright law. Under the four factors of fair use, advocates for AI claim the resulting works are transformative, meaning they do not create substantially similar works and have no impact on the market for the original musical work.

As of now, there are no regulations regarding what training data AI can and cannot use. Last March, the US Copyright Office released new guidance on how to register literary, musical, and artistic works made with AI. The new guidance states that copyright will be determined on a case-by-case basis based on how the AI tool operates and how it was used to create the final piece or work. 

In further attempts to protect artists, UMG urged all streaming services to block access from AI services that might be using the music on their platforms to train their algorithms. UMG claims that “the training of generative AI using our artists’ music…represents both a breach of our agreements and a violation of copyright law… as well as the availability of infringing content created with generative AI on DSPs…” 

Moreover, the Entertainment Industry Coalition announced the Human Artistry Campaign, in hopes to ensure AI technologies are developed and used in ways that support, rather than replace, human culture and artistry. Along with the campaign, the group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

Regardless, numerous AI-generated covers have gone viral on social media including Beyoncé’s “Cuff It” featuring Rihanna’s vocals and the Plain White T’s’ “Hey There Delilah” featuring Kanye West’s vocals. More recently, the musician Grimes recently shared her support toward AI-generated music, tweeting that she would split 50% royalties on any successful AI-generated song that uses her voice. “Feel free to use my voice without penalty,” she tweeted, “I think it’s cool to be fused [with] a machine and I like the idea of open sourcing all art and killing copyright.”

As UMG states, it “begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”

While the music industry and lawyers scramble to address concerns presented by generative AI, it is clear that “this is just the beginning” as @ghostwriter977 ominously noted under the original TikTok posting of the song. 

Copyright Law (Taylor’s Version)

/ Washington Journal of Law, Technology & Arts / Leave a comment
Photo by Barthy Bonhomme on Pexels.com

By: Melissa Torres

Are you ready for it? Taylor Swift is reportedly set to kick off 2023 with the release of a new album, Speak Now (Taylor’s Version). Despite just releasing the fastest-selling album of 2022, Midnights, fans have been speculating about which one of her early albums she’ll rerecord next for quite awhile. Reports state, “Taylor has quietly been in the studio working on remaking both Speak Now and 1989. All details are still being ironed out but Speak Now (Taylor’s Version) should be out within the next couple of months, before she kicks off her Eras world tour.” 

But why is Taylor Swift rerecording old albums?  

While it may seem obvious to the general public that the writer, composer, and performer of a song would then own the recording of the song, the music industry functions on a different set of rules formed by contracts and copyrights. When a new artist signs with a record label, they form a contract which specifies the intellectual property rights of the works created. 

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. Common types of work include photographs, illustrations, books, and music. These works are fixed when they are captured in a “sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.” U.S. copyright law provides copyright owners with a list of exclusive rights and also provides owners of copyright the right to authorize others to exercise these exclusive rights, subject to certain statutory limitations. 

Typically, in the music industry, copyrights are divided between the musical composition of a song and its sound recording. The musical composition refers to the lyrics of a song, the music itself, or both. The sound recording, also known as the master, is the recorded performance of the song. As a result, more often than not, an artist’s record label owns the master of a song.  

In Swift’s case, she signed with record label Big Machine Records in 2005 and formed a contract in which one of the stipulations was that Big Machine would own the rights to the sound records in perpetuity. After the deal ended in 2018, Swift moved on and signed to a different label. Her recordings made over the 13 years stayed with Big Machine, and the label sold the rights to them for $300 million to Scooter Bruan in 2019. Swift alleges she was never given the opportunity to purchase these rights. Despite writing and performing over 82 songs, she has no rights to those records and receives no payment anytime they are played. Therefore, the singer embarked on a mission to rerecord her first six records in order to own both the musical composition and master of the new recordings. 

Because Swift has written every single song released in those six albums and therefore owns the musical composition copyright, she retains the “sync rights” of her music. A synchronization license is needed for a song to be reproduced onto a television program, film, video, commercial, radio, or even a phone message. Permission from the owner of the master use license, typically the record company, also needs to be obtained if a specific recorded version of a composition is used for such a purpose. As a result, everytime these songs are used for commercial purposes, the owner of the masters earns a profit. 

By rerecording versions of her old hits, Swift will now hold the master and composition rights of these songs. To be clear, the original masters of these songs still exist, but by encouraging fans to stream the newer recorded version, Swift is able to reclaim any income that may have gone toward songs previously owned by her former label. 

What can we learn from Swift?

Swift’s case provides several important lessons to creators about the importance of intellectual property rights. Situations such as these, while not usually on the same scale, are relatively common in the entertainment industry. Prince, Kesha, and The Beatles are just some of the many artists who have fought for ownership rights of their music.  Artists need to be careful when entering contracts in order to protect their intellectual property rights. Intellectual property is valuable, and it is crucial artists recognize the significance of protecting their rights. Without intellectual property protection, artists would not be fully compensated for their creations. As a result, artists’ desire to produce new work would decline and cultural innovation would suffer. Moreover, creators should never rush to sign a contract before consulting a legal professional and fully understanding the future implications of each clause, as they can have enormous ramifications. The document that Swift signed in 2005 is still affecting not only her life, but the music industry today. Despite the legal hurdles Swift has dealt with, she is ultimately able to survive and profit off recreating her old music. Swift’s strong fan base has rallied behind her by promoting her rerecorded music and has helped her continue a career as one of the most successful female artists of the decade.