The plaintiff used a U.S.-based text-to-image artificial intelligence (“AI”) service to generate an image of a woman that he posted to a lifestyle platform called Xiaohongshu, also known as “Little Red Book”. A China-based blogger then used the AI-generated image in a blog post on Baijiahao, a Chinese blogging platform, without the plaintiff’s permission. The plaintiff sued for copyright infringement in May 2023.
The plaintiff argued that the “intellectual investment” of selecting and arranging the inputs necessary to generate the image at issue is akin to photographers manually adjusting antique cameras to achieve a desired result in a photograph. In that scenario, it is universally understood that the photographer is the author of the resulting copyright-protected photograph. Here, the analogy designates generative AI systems as mere tools for humans to create expressive works rather than the AI systems creating such works.
The Beijing-based court agreed and ordered the defendant to publicly apologize and pay the plaintiff 500 Yuan (USD $70) in damages and 50 Yuan (USD $7) in court fees.
The Beijing Internet Court found that the AI-generated image is an artwork that is subject to copyright protection by holding, “as long as an AI-generated image reflects the original intellectual investment of a human being, it should be considered a work that is protected by copyright laws”.
In arriving at its novel holding, the court emphasized that the plaintiff “made a certain degree of intellectual investment” in selecting and arranging the inputs (i.e., a series of creative prompts and parameters that generative AI users feed into the AI system to facilitate an output based upon such inputs). According to the court, the plaintiff-selected inputs were sufficiently original; thus, the output (i.e., the AI-generated image) met the “intellectual achievements” and originality thresholds necessary to enjoy copyright protection. The tech-friendly court strongly emphasized that this decision aligns with the legislative purpose of China’s copyright law. The court reasoned that extending copyright protection to AI-generated content will incentivize individuals to utilize AI for creative purposes, leading to an increased production of creative works.
However, this ruling has sparked intense controversy within the academia in China. If the defendant appeals to the Beijing Intellectual Property Court, the trial court’s apparent misunderstanding of the idea/expression dichotomy seems ripe for challenge. According to the Copyright Law of PRC,only original expressions of ideas – not ideas themselves – may be afforded copyright protection. As for pictorial works like in this case, originality in expression should be embodied by the selection and arrangement of various key elements of an image such as lines, colors, and shapes. The defendant could argue that the plaintiff’s input prompts (e.g., “outdoor environment,” “Japanese idol,” “highly detailed, symmetrical, attractive face,” “perfect skin,” “dreamy black eyes,” “reddish-brown plaits,” “long legs,” “golden hour,” “vivid colors,” “shy,” “graceful,” “cool pose,” “teen,” and “lust”) is merely an idea rather than expression of such idea because the prompts only describe an output, rather than express the necessary elements of the resulting image created by the AI system.