China’s First Case on Copyrightability of AI-Generated Picture

Li v. Liu,

Case Number (2023) Jing 0491 Min Chu No. 11279

Decided on 27^th November 2023

Background

On February 24, 2023, Plaintiff generated a few pictures using Stable Diffusion, a U.S.-based text-to-picture artificial intelligence (“AI”) service. He labelled one of such pictures as “Spring Breeze Brings Tenderness—AI generated picture” and posted it on a popular Chinese lifestyle social media platform “Little Red Book” (Xiaohongshu). Defendant, a Chinese blogger, then published an article titled “Love in March, Among Peach Blossoms” using Plaintiff’s AI-generated picture “Spring Breeze Brings Tenderness” as an illustration in her article, but removing Plaintiff’s user ID and the watermark of Little Red Book from the picture. Plaintiff soon sued Defendant for copyright infringement, including violating his right of authorship and the right of dissemination via the internet.

Issues and Analysis of Court

In this particular case, the court primarily considered the following matters: Firstly, whether the picture created by Artificial Intelligence (AI) can be constituted as a copyrightable work and thus can be protected under Chinese copyright law. Secondly, if the answer to the first question is affirmative, then whether the plaintiff is the rightful owner of the AI-generated picture's copyright. Lastly, the court had to decide whether the defendant could be held accountable for infringing the copyright if the plaintiff is found to be the copyright owner.

1. Whether the Subject AI-Generated Picture Constitutes Copyrightable Work.

The Beijing Internet Court has ruled that the AI-generated picture "Spring Breeze Brings Tenderness" is a copyrightable work of fine art that is subject to Chinese copyright protection. The court listed several criteria that a work must meet in order to be protected under Chinese copyright law, including whether it falls under the fields of literature, art and science, whether it is original, whether it has a specific form of expression, and whether it is an intellectual creation by humans.

The court held that the subject picture met the first and third criteria, as it was similar to commonly seen photographs and paintings and had a specific form of expression. With regards to the criteria of "intellectual creations," the court found that the plaintiff had made intellectual contributions throughout the picture-generation process, including choosing the preferred AI service provider, inputting prompts, and setting technical parameters. Therefore, the court determined that the subject picture met the criteria of "intellectual creations" as it reflected the plaintiff's intellectual input.

Regarding the "originality" criteria, the court held that a copyrightable work must be independently created by its author and reflect the author's personalized expressions. The court stated that whether the use of AI to generate pictures could reflect the author's personalized expressions needed to be decided on a case-by-case basis. In this particular case, the plaintiff had designed the character styles and arranged the final layout and composition of the picture by trying different prompt words, negative prompt words, and various tech parameters. The court found that this process of adjustment and rearrangement reflected the plaintiff's aesthetic choices and personal judgment, and therefore concluded that the subject picture possessed the originality of the author.

Overall, the Beijing Internet Court's ruling established that AI-generated works can be protected under Chinese copyright law if they meet the criteria of intellectual creations and originality.

2. Whether Plaintiff is the Copyright Owner of the Subject Picture.

The court ruled that AI services cannot be considered as authors of copyrightable works as they are not human beings. Additionally, the developers/providers of AI services cannot be considered as authors in this case as they neither intended to create the subject picture nor participated in the creation process. The court noted that the AI developers had already waived their rights to the output content based on the "CreativeML Open RATL++-M License" of Stable Diffusion posted on GitHub.com. Therefore, as the subject picture was generated using the Plaintiff's intellectual input and reflected their personalized expressions, the court held that the Plaintiff is the author of the subject picture.

3. Whether Defendant Should Be Held Liable.

The court has ruled that the Defendant is responsible for violating the Plaintiff’s copyright in the AI-generated picture. The Defendant is accused of removing the Plaintiff's user ID and Little Red Book watermark from the picture without permission and reposting it on a social media platform.

Court Decision

In this case, the Beijing Internet Court made a landmark ruling in China's first-ever case related to the copyrightability of AI-generated images. The case, which was titled LI v. LIU, sparked diverse reactions from the AI industry and the general public. The plaintiff, Mr. LI, filed a copyright infringement lawsuit against Ms. LIU, a blogger on the Baijiahao platform, alleging that she had violated his copyrights in an AI-generated picture. The plaintiff claimed that the blogger had infringed his rights of authorship and dissemination through information networks. After a careful examination of the matter, the court found that the AI-generated picture was a copyrightable work with human authorship, and the defendant was held liable for copyright infringement. This ruling has significant implications for the legal protection of AI-generated content and the broader scope of copyright law in China.