Copyrights for Architectural Imagery in the AI Era
Architecture is a referential discipline. From ziggurats, machines for living, to contemporary biophilic high-rise designs, it is impossible to know whether ideas are genuinely novel or whether they have been conceptualized before. Artificial intelligence has ignited the conversation on intellectual property (IP) even more. As millions generate unique graphic work by typing keywords, controversies have arisen, specifically concerning protecting creative work and the Copyright of architects in their creations. Therefore, understanding the scope of what is protected helps determine whether licenses are sufficient, whether trademark registration’s long road is worth it; or perhaps a graphic piece cannot be protected and belongs to the public domain.
Images can have multiple forms of rights protection. Copyright for pictures and creative work is common, but trademark protection may be required if the image is used to identify the source of a specific product or service. Images can also be licensed, including the Ai produced. On the other hand, imagery might have aspects that cannot be protected and belong to the public domain, such as architectural and technical representation, or standard elements, such as doors, materials, or structures.
The following section serves as a guide for creators in their path of copyrighting; nevertheless, cases differ, so it might be helpful to work with an attorney or legal service for advice.
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Copyright and Trademark
Copyright protects the rights of “authors” in their original creative works, including architectural and design drawings. The author of a copyrighted work has the exclusive right to reproduce (print or copy) the creative content. Registration is optional but highly recommended. It provides legal benefits to the author, including the ability to enforce the Copyright against infringers in court. Whereas Copyright protects original work, a trademark protects items that distinguish or identify a particular business from another. A trademark is a symbol, word, logo, or color that identifies the source of a product or service.
Trademark laws differ from country to country. For example, Colombia allows architects “not to associate their names with modified work, including plans and graphics,” while in Europe, the right to the integrity of a work includes protecting it against any unauthorized material modification or damage to the author’s reputation. Namely, while there are no restrictions for tourists to photograph the Auditorio de Tenerife in Spain by Santiago Calatrava, the image of the Auditorio was registered as a trademark. Since 2003 Tenerife, SAU has charged commercial operators for using its external space for film and photography and requires that the final product be cleared with the media department before publication. A deposit is also required to guarantee the proper use of the images.
In any case of Statutory License, protecting economic or moral rights requires attorney services, implying red tape and money. In the case of a piece reproduction, a license is given to a person or entity (“licensee”) the authorization to use a work from the copyright owner, usually in exchange for payment. Several organizations serve as third-party, eg, GNU General Public License, Creative Commons (CC), or help determine if a piece is in the public domain.
Creative Commons (CC) is an international network that offers provides attribution tools that rely upon data aggregated from publicly available content repositories that anyone can use. An image (blueprints, illustrations, photos, or renders) can be adapted under six copyright licenses. Eg, CC BY-NC allows reusers to distribute, remix, adapt, and build upon the material in any medium or format for non-commercial purposes only; CC BY will enable the use of the material in any medium or format, as long as attribution is given to the creator. Nevertheless, CC is not a law firm, does not provide legal advice, and is not a substitute for an attorney firm.
DALL-E and Mid journey, the two main AI-powered image generators, use an artificial intelligence system trained on public datasets to produce their assets. Such assets may be unintentionally similar to copyright-protected material or trademarks; however, both have different approaches in terms of IP protection.
Midjourney grants a license under the “Asset License” Attribution-NonCommercial 4.0 for unpaid members. That allows one to use the images as long as it does not make a profit and as long as one gives credit (“attribution”) to Midjourney. For paid services, the image belongs to the creator, even if the piece is a remix of someone else’s work, meaning that someone else can use your image as the basis for their experimentation too. However, even if you generated a graphic piece and have all rights to use the images the service creates, Midjourney also keeps its license to use your works, including sub-licensing.
In DALL-E, users get full usage rights for all the media they create on DALL-E 2, including rights to reprint, sell, and merchandise. However, it is unclear if the images the platform uses to train its algorithms were properly released and legally authorized for said use.
What’s not protected?
One cannot copyright a graphic that contains the “idea” of a skyscraper. If that were so, only one architect could draw high-rises, and some words would be banned on Ai platforms for legal reasons. As such, unprotected elements of a copyrighted image can be: (1) scènes à faire, e,.g. a claim of graphic infringement of a skyline or a distinctive scene; (2) ideas as opposed to expression, e,.g. a roof diagram; (3) facts and other public information; and (4) expressions that are indistinguishable from the underlying ideas, e,.g. geometry and representation of classic or modern architecture are all recognized styles from which architects draw. Elements taken from styles are not protected.
More than ever, technology is performing creative tasks encouraging designers to explore AI, and in the case of architecture, referencing and recalling are part of the discipline. For that reason, copyrights in many jurisdictions remain open to interpretation, considering if architecture, including imagery, should be protected in its own category. Perhaps separating architecture from “artistic works” and “graphic works” would develop another dedicated branch in the discipline that could contribute to copyright laws in an era of Artificial Intelligence, inspiration, and plagiarism.