Have you seen a statement in your contributor account that AI images are prohibited on Shutterstock? Moreover, if you do submit generative AI images, Shutterstock will disable your account.
Why for you, as a stock photographer, is this Shutterstock ban important? What are the true reasons behind such restrictive policy on AI content? These are some of the question we explore here.
Our take on this policy is that it is somewhat arbitrary. Likely, stock photography platforms are trying to shield themselves from future legal liability. This ban may be reversed in the future once the legal ground becomes clearer.
Shutterstock’s Justifications for AI Content Ban
To justify this ban, Shutterstock made two points:
- As per our Contributor Account and Content Submission Guidelines and Contributor Terms of Service (Sections 13d and 13f), we want to ensure contributors can prove IP ownership of all submitted content. Since AI content generation models leverage the IP of many artists and their content, AI-generated content ownership cannot be assigned to an individual.
- We also want to be confident that artists are properly compensated if and when their work is used in AI training models. Given the availability of various AI content generation models in the marketplace, we are unable to verify the model source for most AI-generated content and therefore are unable to ensure all artists who were involved in the generation of each piece of content are compensated.
The first point asserts that a contributor must prove ownership of an stock image. AI creates content after looking at many images before creating its own. For this reason, Shutterstock thinks that it is hard to prove who owns for this reason.
The second point deals with fair compensation for contributors. May AI models use copyrighted images as inputs to train their algorithms. Shutterstock wants to make sure that copyright owners are paid.
How Does Generative AI Work?
AI models must be trained first before they can create images, answers to questions and books. It is like a person going through university. You must first gain prior knowledge before creating something of your own.
The AI in its current form is a mathematical model. It has numerical parameters derived from the trained data (e.g. images or text). When a human asks ChatGPT a question, the AI must perform statistical inference. It leverages stored parameters from its training to generate answers.
As you see, having the right AI algorithm is only half the problem. AI models are useless if you do not feed them the right data.
AI “Wild West“
AI-generated content right now is a gray area. Many people are making money from generative AI content left and right. Entrepreneurial individuals create photos, write books, blog posts and more for profit.
Recently, we watched a YouTube video where a guy from Canada writes books using generative AI. He proofreads these books, inserts a few images and voila. According to him, he makes thousands of dollars a month by targeting middle-aged women.
Generative AI Content Legal Framework
The U.S. Copyright Office and federal courts ruled that AI imagery without substantial human input cannot have copyright. What constitutes “substantial” is still in-progress. But, if an artist took AI images and created something new, a copyright is possible.
This raises the question of who actually owns these AI images. Are they considered public domain? Can anyone copy and do whatever they want with them? Companies, such as OpenAI, often assign ownership rights of their output to end users through their terms of use.
Furthermore, there are legal questions for the images used to train AI algorithms. If these images have copyright, AI organizations will be in trouble. Many AI algorithms scrape content off of the internet for free.
Getty Images sued Stability AI in 2023. The lawsuit alleges that Stability AI used photos from Getty Images to train its AI algorithm. If found guilty, Stability AI will be liable for copyright infringement. But, what is not clear is what will happen to many images generated by Stability AI. Many of them might have been used for commercial purposes by now.
Adobe Stock Allows Generative AI Images
Currently, major stock photo websites prohibit AI images on their platforms. But, Adobe Stock does allow them. Adobe states in its guidelines for submitting AI content:
“You must have all the necessary rights to submit generative AI images to Adobe Stock for licensing as described in our Contributor Terms (e.g., broad commercial use). As with any other tools you use to create image submissions, you must closely review the terms of any generative AI tools that you use to confirm that you have the right to submit generative AI images created with such tools to Adobe Stock for licensing.“
Adobe Stock also has a few other rules for AI content. Specifically, they are careful with AI images created from prompts referring to other artists’ work. Also, they do not accept AI images of real place, real people or identifiable property.
Clearly, Adobe is taking a risk in case copyright infringement lawsuits are successful. We do not know what their thinking is. Maybe, their legal team determined that the lawsuits will not affect the AI images on their platform. But, who will foot the bill for copyrighted images used to train the AI algorithm? While unlikely, copyright owners may go after Adobe Stock who allowed selling AI images on their platform.
Shutterstock AI Policy Analysis
Let’s take a look at each point Shutterstock used to justify this blanket ban.
1. Contributors Can’t, But Shutterstock Can?
First, Shutterstock says that an individual does not own IP for of AI-generated images. True, AI algorithms leverage many images to create their own. Also, the fact that generative AI images do not have copyright adds ground to this statement. But then, how come Adobe Stock allows its contributors to upload AI images?
Also, this point looks hypocritical. Why? Because Shutterstock is selling AI images of its own on its platform. As it stands now, only Shutterstock can sell AI-generated images on Shutterstock. Is Shutterstock trying to take over all profits from AI content on its own website? Obviously, it is their platform and Shutterstock can do whatever they want.
2. Compensation for Copyrighted Material Matters
As for the second point, it looks like it may have legal merit. Shutterstock points out that AI model owners must compensate copyright owners. The Getty Images vs. Stability AI case will of course resolve this at some point. It is unlikely that AI companies can scrape copyrighted stuff off internet for free. After all, output from generative AI has a commercial purpose in many cases. AI companies are trying to claim fair use of data to defend themselves.
But even if Shutterstock is right about its second point, does this even matter? AI companies have opened this can of worms long time ago. People are using AI-generated content for commercial purposes all over the place.
Even if Getty Images wins, someone will foot the bill (probably AI companies) and everyone will move on. Likely, AI organizations will charge (they already do) for their services. This will allow them to compensate copyright owners going forward.
Nobody will demand money from small individuals for using AI content in the past. It is not reasonable and very hard to track. Moreover, the end users of AI-generated content may not have been aware that there was a copyright infringement when they issued a prompt to AI. This makes it difficult to hold users liable for copyright violations under current laws.
People will still be able to generate and profit from AI content in the future. Although, it may not be as simple as it is now. Using AI content may need attribution or come with its own restrictions. It remains a fluid situation for now from a legal standpoint.
Concluding Remarks
Shutterstock is taking a conservative approach by instituting this blanket ban. Clearly, they are trying to shield themselves from potential liability. U.S. courts may rule that AI companies are liable for their use of copyrighted material. There is a small chance that stock photo platforms that allowed the sale of AI-generated content may be liable too. Nobody will hunt down the small fry.
Either way, people will likely continue profiting from AI-generated content. They may have to pay more and more to AI companies, though. In such a case, Shutterstock’s blanket ban will look odd. Its 2-point justifications will look hypocritical. For now, it is wait-and-see.