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The use of AI generated imagery – death by a thousand cuts?

INTELLECTUAL PROPERTY ISSUES

“The ancient Chinese torture tactic known as lingchi — which translates loosely to “slow slicing,” “lingering death,” or “death by a thousand cuts” — was a method of execution from the seventh century up until 1905, when it was officially outlawed. As the name implies, lingchi was a drawn-out and brutal process, wherein an executioner would deliver justice to various lawbreakers by administering a series of cuts to the skin. Unlike most execution styles, which aim to kill sooner rather than later, the aim of lingchi was a long, slow punishment, intended to see how many cuts a person could withstand before dying.” ¹

Some might argue that the use of imagery generated by AI platforms such as Midjourney, Adobe Firefly, Generative AI by Getty, Microsoft Designer’s Image Creator, Dall-e 3 by Open AI and DreamStudio by Stability AI, to name just a few, amounts to lingchi. After all, the images generated by these platforms may well be the result of a thousand cuts of (or off) other images.

But what would the use of AI generated images arguably be leading to the ‘death’ of?

The answer to this rhetorical question is, in my view, as follows.

AI generated imagery is metaphorically killing the need for photographers and their expertise. Creative agencies, inhouse designers, marketers and businesses using AI generated imagery are doing so instead of using either licensed or original images taken by real, flesh n’ bone photographers.

Some AI images, I will honestly admit, are truly incredible – especially if the AI images have been modified by skilled designers – but the inescapable truth is the use of AI imagery is doing photographers out of a job.

AI generated imagery is also metaphorically killing the art of photography because commercial photographers, at least, are no longer being incentivised to create new images. As a result, AI generated imagery is also metaphorically killing the expansion of the ‘bank’ of images from which AI generated images are drawn (legally or otherwise) – if not completely, then not fast enough to sustain a healthy AI imagery eco-system.

There is no doubt that AI platforms such as Midjourney, Adobe Firefly, etc are amazing tools for creative agencies and brands. They come at a cost, though, to photographers who have spent years if not decades on developing their craft. They also come at a cost to brands because, at present at least, brands cannot own copyright in AI generated images per se – consequently, they cannot, under copyright law at least, stop a competitor from using the same or very similar AI generated images.

I believe brands and businesses in general need photographers. Yes, need. Sure, AI generated imagery may be cheaper and more ‘convenient’ to ‘create’ (especially for those outdoor scenic shots up a mountainside on a stormy night), but without a constantly updating bank of images to draw from, the composition of images generated by AI will become homogenous. Add to that the risk that, on finding out images used by a brand are AI generated, consumers may feel misled or ‘cheated’ – especially in the realm of social media and influencers. Brands and businesses need to be able to differentiate their goods and services in the market and original, photographer-taken images – in which exclusive ownership of copyright can be claimed – is a proven way to achieve this.

AI generated imagery is undoubtedly here to stay. There must be a balance, however, between the cost and convenience of AI generated imagery and the need for creativity and commercial differentiation. That said, with the constant need for new ‘flesh’ to feed the AI imagery beast, photographers might actually end up being in more demand than ever before…

¹. Howard, Krissy. “Lingchi May Be The Most Terrifying Punishment In History.” AllThatsInteresting.com, May 2, 2017, https://allthatsinteresting.com/lingchi. Accessed June 24, 2024.

Related: WHEN IP MEETS RP…NZ artists beware

Ben Cain
Ben Cain
Ben Cain is a Partner at James & Wells. He can be contacted at 07 928 4470 (Tauranga), 07 957 5660 (Hamilton), and ben.cain@jamesandwells.com

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