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November 17, 2023 3 minutes to read ∙ 700 words

TAPAs: Using AI-Generated Images

Jeffrey Allen and Ashley Hallene
AI image generated using the text prompt “An image of an image being created by AI.”

AI image generated using the text prompt “An image of an image being created by AI.”

Created using the AI system Bing Image Creator, powered by DALL-E, developed by OpenAI.

We traverse uncharted waters when it comes to content creation. Artificial intelligence (AI) tools are changing the game. Before AI, lawyers either created or purchased a license for the images on their website. Failure to follow this protocol could cost you $8,000 to $150,000 in copyright infringement fines. Thanks to AI, there may be a way to avoid this risk. In August 2023, the U.S. District Court for the District of Columbia ruled in Thaler v. Perlmutter, 1:22-cv-01564 (D.D.C.), that AI-generated works are not copyrightable without human authorship. In this case, the plaintiff, Stephen Thaler, argued that he “provided instructions and directed his AI to create the Work” and that “the AI only operates at [his] direction.” In his application for copyright, the plaintiff claimed the work was created autonomously by the AI generator and that his claim of copyright was based solely on the machine that generated it. The plaintiff appealed the decision, and it will be interesting to see how it unfolds.

While you cannot copyright an image you create with AI, you can still use it in your blog or website, provided it does not infringe on another’s copyrighted image. Here are some tips for using AI-generated images on your website:

Tip 1. Understand the Ownership and Copyright of the Image

Ensure that you have the rights or proper authorization to use the AI-generated image. If you have generated the image yourself, you usually have the right. But if the AI-generated image incorporates copyrighted material, such as existing photos or artwork, you may need permission from the original copyright holder. For instance, if you use AI to generate an image that includes a recognizable character from a copyrighted cartoon, it will likely infringe on the copyright holder’s rights unless you have obtained proper authorization or if your usage falls under a specific exception, such as fair use. It’s important to be cautious when using AI-generated images and ensure that you have the appropriate rights or permissions to use any copyrighted material involved.

Tip 2. Check Out the Licensing and Terms of Use

If you obtained the AI-generated image from a third-party source or platform, review the licensing agreement and terms of use to determine whether it permits usage on websites, commercial applications, or any other specific restrictions. Here are some popular AI image generators and their terms of use:

DALL-E (Open AI)

  • Cost: Free (15 Credits); purchase an additional 115 credits for $15. Each credit allows you to create one “generation” using the system.
  • Terms of use: “Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output.”

Visme

  • Cost: Free (Basic plan) to $24.75 per month (Pro plan, billed annually).
  • Terms of use: “Visme will not claim any copyright ownership over your input data or the resulting material you generate.”

Midjourney

  • Cost: $8 per month (Basic plan, billed annually) to $96.99 per month (Mega plan, billed annually).
  • Terms of use: You give Midjourney a perpetual right to use what you input, and in exchange, you have ownership of the output, provided it was created in accordance with the user agreement.

Bing Image Creator

  • Cost: Free
  • Terms of use: It is important to note that images created by Bing Image Creator can only be used for non-commercial purposes (thus they cannot be used for your firm website.)

Tip 3. Choose Images That Are Relevant to Your Practice Area and Target Audience

You want to use images that convey your expertise, professionalism, and personality, as well as match your brand identity and tone. For example, if you specialize in family law, you may want to use images that show happy families, couples, or children. If you cater to corporate clients, you may want to use images that show professionalism, success, or innovation. The goal is to attract and engage potential clients. To do this, first, you need to find your message. Your message should always be the focus of that page. Once your message is established, find a photo to support or enhance it. As another example, if you are a personal injury lawyer, you may want to use images that show how you help your clients recover from their injuries.

Tip 4. Provide Proper Attribution

If required, provide proper attribution to the creator of the AI-generated image, following the guidelines specified by the licensing agreement or any applicable copyright laws. The laws and norms are still evolving in this area. For safety, you should always label AI-generated images as such to avoid confusion or misattribution. For example:

AI image generated using the text prompt “Realistic photo of a futuristic office with a lawyer meeting with clients, film photography.”

AI image generated using the text prompt “Realistic photo of a futuristic office with a lawyer meeting with clients, film photography.”

Created using the AI system Let’s Enhance Image Generator, developed by Let’s Enhance.

Tip 5. Remember Privacy and Data Protection Rules

Be mindful of any privacy concerns associated with the AI-generated image. Ensure compliance with relevant data protection laws and consider obtaining consent if the image may include recognizable or sensitive personal information. Stay up-to-date on the latest legal developments and industry initiatives in AI-generated images and copyright law. Keep in mind that AI-generated images may not be original or authentic and may infringe on the intellectual property rights of others. You may not have the ownership or the license to use the AI-generated images, especially if they are created by using copyrighted materials in the training data or by copying or modifying existing images. For example, in August 2023, the Copyright Office of the Library of Congress issued a notice of inquiry to solicit public comments on the copyright law and policy issues raised by AI technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training (Artificial Intelligence and Copyright, 88 Fed. Reg. 59,942 (Aug. 30, 2023)). These developments indicate that the current legal framework does not recognize AI as an author or a source of originality and that human involvement and creativity are still the key factors for determining the eligibility and scope of copyright protection. These developments also indicate that the way AI-generated images are treated remains in flux and subject to change soon.

AI-generated images can help you create unique and engaging visual content for your website, such as logos, banners, illustrations, or infographics. AI-generated images can help you enhance your existing images or create new ones that suit your brand identity and tone. There are risks along with these benefits, however. You should also always use reputable and reliable AI tools and always check the terms of use and the quality of the AI-generated images before using them on your website.

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Jeffrey Allen

Oakland, CA

Jeffrey Allen is the principal in the Graves & Allen law firm in Oakland, California, where he has practiced since 1973. He is active in the American Bar Association (particularly in the GPSolo and Senior Lawyers Divisions), the California State Bar Association, and the Alameda County Bar Association. He is Editor-in-Chief Emeritus and Senior Technology Editor of GPSolo magazine and the GPSolo eReport and continues to serve as a member of both magazines’ Editorial Boards. He also serves as an editor and the technology columnist for Experience magazine. A frequent speaker on technology topics, he is a former member of the ABA Standing Committee on Information Technology and the Board of Editors of the ABA Journal. He coauthored (with Ashley Hallene) Technology Solutions for Today’s Lawyer (2013) and iPad for Lawyers: The Tools You Need at Your Fingertips (2013). In addition to being licensed as an attorney in California, he has been admitted as a Solicitor of the Supreme Court of England and Wales. He may be reached at [email protected].

Ashley Hallene

Houston, TX

Ashley Hallene ([email protected]) is an attorney and land manager with Demeter Renewable in Houston, Texas, and is Editor-in-Chief of the GPSolo eReport. She frequently speaks in technology CLEs and has published articles on legal technology in GPSolo magazine, the GPSolo eReport, and the TechnoLawyer Newsletter. Ashley is an active member of the ABA Solo, Small Firm and General Practice Division, the ABA Young Lawyers Division, and the Senior Lawyers Division.

Published in GPSolo eReport, Volume 13, Number 4, November 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.