China: Copyright protection for AI-generated works

April 23, 2024

In November 2023, the Beijing Internet Court in China in a judgement of a landmark case of AI generated image a copyright infringement case, answers the important questions of (1) whether AI-generated works are protectable by copyright, and (2) if yes, who owns the copyright.

The plaintiff used Stable Diffusion (a text-to-image generative AI model) to generate a picture of a young woman (the Picture) by inputting various prompts (including negative prompts) and adjusting the parameters and posted the Picture on the social media. Later, the plaintiff discovered that the defendant used and published the Picture on another platform without permission and brought a claim against the defendant for copyright infringement.

The Beijing Internet Court examined the facts of the case and rendered a detailed ruling. First, the court considered the meaning of “works” under the Copyright Law of the People's Republic of China, which provides that copyrightable works must be original and reflect intellectual achievement, among other things.

In terms of intellectual achievement, the court noted that the plaintiff did not merely use existing pictures returned by search engines or rearrange pre-designed elements when it created the Picture. Instead, the plaintiff designed how the woman in the Picture should look, and entered relevant prompts to generate an image that matched expectations. The plaintiff inputted detailed prompts such as “Japan idol”, “cool pose”, “viewing at camera” and “film grain”, and then further adjusted the prompts based on the preliminary images generated by Stable Diffusion before finally completing the Picture in question. These actions demonstrated the plaintiff’s intellectual input.

Regarding the concept of originality, the court noted that this generally means the work should be independently completed by the author, and that it should reflect the author’s subjective expression. In general, if the same work can be created by different people following a fixed set of procedures, formula or structure, then it cannot be original. In the context of AI-generated images, the determination of originality should be made on a case-by-case basis. The more specific the prompts are (e.g., by inputting specific descriptions of the pictorial elements and the overall composition of the image), the more the work would show its author’s original expression of ideas. In this case, although the plaintiff did not physically draw the Picture using pen and paper, the plaintiff designed the different elements of the image by inputting and fine-tuning the prompts and adjusting the parameter settings. Doing so demonstrated the plaintiff’s subjective aesthetic choice and original judgment. The court, therefore, held that the Picture is protected by copyright as an original work.

Consequently, the court categorized the Picture as a “work of fine arts” in accordance with Article 3 of the Copyright Law, recognizing the artistic nature of AI-generated images and affirming their place within the realm of copyrightable works.

On the issue of copyright ownership, the court noted that (1) the Copyright Law provides that copyright shall be owned by the author of the work (which can be a natural person, legal person or an unincorporated association), and an AI model cannot be an author (and hence copyright owner) because it is not a natural person, legal person or an unincorporated association, (2) the designer of Stable Diffusion only created the AI model, but was not involved in the intellectual input leading to the creation of the Picture, and (3) the license for using Stable Diffusion expressly states that the designer of Stable Diffusion does not claim rights in any output content. Considering the above, and given the plaintiff’s significant role in the creation process, the plaintiff is the rightful author and copyright owner of the Picture.


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