T&C may appl-AI (v.2.0)
A short guide to the terms of use of generative AI for content creators

Exactly one year ago, as the world was being rocked by the launch of ChatGPT-3, we published on our blog a brief overview of the intellectual property licensing clauses on content generated by the most widely used generative AI tools. Today, 12 months after the last article and in light of the numerous copyright lawsuits that have begun to rage in the world of generative AI, we have decided to update that overview.

In this context, the importance of a thorough understanding of the Terms and Conditions (T&Cs) applicable to generative AIs is becoming increasingly evident. Our short guide will provide an up-to-date analysis of the T&Cs surrounding the use of generative AI, with a particular focus on the legal implications arising from recent lawsuits, such as the one between the New York Times and OpenAI. The fluidity and speed with which these issues evolve requires constant updating of knowledge to avoid possible legal complications.

Continuing where we left off last year, we will explore licensing clauses, creative authorship, liability and the dynamics of collaboration between artificial intelligence and human authors. This guide aims to be an essential tool for navigating the complex legal landscape of generative AI, providing practical advice and points of reflection for those venturing into the world of collaborative content creation with ‘intelligent machines’.

• OPENAI – DALL-E; CHATGPT (31 January 2024)

These two models developed by the start-up OpenAI probably need no introduction. ChatGPT is a conversational model capable of holding complex conversations, providing information and writing texts using natural language; Dall-E is an artificial intelligence tool capable of generating images from text descriptions.

Content created through these two popular tools is subject to the same licence, issued by OpenAI.

In this case, just as a year ago, the licence states that “the User is the owner of all the Input and, subject to the User’s compliance with these Terms, OpenAI assigns to the User all its right, title and interest in and to the Output.”  However, we still find the same exceptions to the exclusivity of this licence, as OpenAI very generically reserves the right to “use the Content as necessary to provide and maintain the Services, comply with applicable law and enforce our policies. You are responsible for the Content, including ensuring that it does not violate any applicable law or these Terms.“

A significant novelty with respect to last year, also resulting from the event that had seen the blocking of ChatGPT in Italy by a measure of the Italian Data Protection Authority, is certainly the introduction of the user’s option to prevent OpenAi, by means of an Optout, from training its model on the content – be it input or output – entered into and generated by the platform.

• MIDJOURNEY (22 December, 2023)

Another popular artificial intelligence tool capable of generating images from textual descriptions.  

The old terms and conditions of Midjourney stipulated that, according to the licence, the user was the owner of all resources created with the services. However, there was an important exception for non-paid users, who received a Creative Commons Non-Commercial 4.0 Attribution International Licence on the final output. This meant that content could only be used if certain requirements were met, including mentioning the authorship of the work, providing a link to the licence and indicating any modifications. In addition, the use had to be non-commercial. 

Midjourney’s new terms and conditions state that the user is the owner of the resources created with the services to the fullest extent permitted by applicable law. However, there are some exceptions, such as the subjection of the user’s ownership to the contractual obligations and rights of third parties. Furthermore, if the user is a company with a turnover of more than USD 1,000,000 per year, it is necessary to subscribe to a ‘Pro’ or ‘Mega’ plan to own the resources created. Finally, if you ‘enlarge’ the images of others, they remain the property of the original creators. 

These new terms reflect a more specific and detailed approach than the old ones, with a focus on conditions of use for corporate users and respect for the rights of third parties.

Further, in Midjourney’s new terms and conditions, it is specified that by using the Services, you grant Midjourney, its successors and assigns a perpetual, worldwide, non-exclusive, sub-licensable, royalty-free, irrevocable copyright license. This license allows Midjourney to reproduce, prepare derivative works of, publicly display, publicly perform, sublicense, and distribute the text and image submissions you submit to the Services, as well as any Assets you produce through the Service. Importantly, this licence survives termination of this Agreement by any party for any reason. This update emphasizes the fact that Midjourney acquires broad rights to the assets created by users through the Services, even after termination of the Agreement.

• STABLE DIFFUSIONS WEB (20 August2022)

Stable Diffusion is a deep machine learning model published in 2022, mainly used to generate detailed images from text descriptions.

In this case, Art. 6 of the Licence merely states that “the Licensor does not claim any rights to the Output generated by the user using the Model. The user is responsible for the generated output and its subsequent use.” The user is therefore granted the availability of the generated content. However, there are some exceptions. In fact, in the next sentence, the licence states that “no use of the output may contravene the provisions of the Licence (Annex A)” referring to a list of uses of the output that are unlawful because they are potentially harmful to third parties.

In conclusion, it is worth emphasising how crucial it is for content creators to fully understand the legal landscape surrounding the use of generative AI, ensuring a harmonious collaboration that respects the rights of all parties involved, thus avoiding civil liability for copyright infringement of third parties.