Why You Should be Careful Using DALLE-2 & Midjourney Images for Commercial Purposes

July 29, 2022

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When the company Open AI launched their new and paid version of the AI-tool DALLE-2, something also happened with their licensing terms. In this short post we explain, why we love new advances in text-to-image generation technology, but why we also encourage you to be careful, if you plan to use any of these photos for commercial marketing purposes.

DALLE 2 is just one of many new platforms offering you access to AI-generated content, and claiming that you can use it for commercial purposes. Other platforms include Midjourney, Jasper Art, Nightcafe, Starry AI and Craiyon. We will focus on Dalle 2 in this blog post, but they are almost identical, when it comes to the legal challenges and problems.

The technology used in DALLE 2 (sorry if this becomes a bit geeky 😊)

Have you heard about DALLE 2 from Open-AI? The AI-tool that magically creates images from text. If you have, then you need to read this too …

On the surface it seems pretty amazing. Ask DALLE to generate a photo of a flight attendant, and here is what you get:

source: DALL·E 2 (openai.com)

Some have been arguing that too many of the DALLE-2 results are stereotypes and biased, but that is not the real problem here. The real problem is the legality of these images.

Some of the images created are as close to old-school stock photos, as you can get, and they are so for a reason. Even though Open AI refuses to disclose all of the datasets that they have been using to train their AI, it’s clear that these images are not an artistic AI imagining what a flight attendant would look like. They are old image databases and poor stock photos almost replicated 1:1.

If you look deeper into the documentation of DALLE-2, what you find are a number of research papers:
[2204.06125] Hierarchical Text-Conditional Image Generation with CLIP Latents (arxiv.org)
[2112.10741] GLIDE: Towards Photorealistic Image Generation and Editing with Text-Guided Diffusion Models (arxiv.org)

According to the papers, the only public dataset (there might be more than the company doesn’t want to publish in public) that has been used to train DALLE 2 is the so-called COCO-dataset.

This is a dataset that was collected as part of a project sponsored by Microsoft and others. Sorry to become a bit technical now, but the dataset consists of two things:

1) The annotations on the images. An annotation basically means a note, text, and/or description added to each image. These annotations have been released under the so-called Creative Commons Attribution 4.0 License.

2) The images themselves. These images do NOT belong to the COCO-project. They have been sourced from Flickr and must therefore abide by the Flickr Terms of Use.

And as it says on the website: “The users of the images accept full responsibility for the use of the dataset, including but not limited to the use of any copies of copyrighted images that they may create from the dataset.”

So what does this mean for you as a normal user of photos, videos etc. and for your daily marketing and communication? Are these license-free images? You need to be careful and think twice!

From open and free to closed and paid

The legal issues are potentially massive. Now that DALLE-2 has changed from being open and free to closed and paid, they have also changed their terms, so that …

“You can use all the images that you generate for all commercial purposes.”

This is of course a pretty bold statement, but if you can convince the public that this AI should be compared to a creative artist rather than a Photoshop-editing person getting more than inspired by existing stock photos, it could work, right?

However, looking at the output, when it comes to people and realistic images, this is not a creative artist at work. This is edited replications of dataset that are not allowed to be used for commercial purposes as described above.

What do the experts say?

When the lawyer and IP-expert Bradley J. Hulbert was asked about his opinion, this is what he said to TechCrunch in an interview:

“Image-generating AI vastly scales the problem of copyright infringement, because it lowers the barrier to entry.”

Systems like DALL-E 2 sources / scraped images from countless public websites, and there isn’t direct legal precedent in the U.S. that upholds publicly available data as fair use. So, the legal issues both apply to the images generated AND the dataset used to train them.

“There are big problems with the rights to the imagery and the people, places, and objects within the imagery that models like DALL-E 2 are trained on.”

As another example, here is the new DALLE ‘creating’ images of a lawyer:

source: DALL·E 2 (openai.com)

Again, biases and stereotypes aside, it’s quite obvious how much these images resemble the ones that you would find on an old-fashioned stock photo website or the free image-data training sets that are available on the internet (though not to be used for commercial purposes).

In the datasets that we mentioned before, the images may have a Creative Commons license on their annotations and a Flickr license on the images themselves, but they haven’t got, what is known in the image industry as model and property releases.

This basically means that the people on the images have NOT approved to be used for any kind of commercial purposes, so using the images for such purposes would potentially cause legal problems and you end up receiving a copyright infringement letter.

You’re not insured in any way, so be careful

So, what happens, when you combine these images to turn into new images? Does the legal problem go away? Obviously not. It may be harder to document, but it’s still an issue.

For all of these reasons our advice is to be very careful when using AI generated images like these for commercial purposes. This means for your newsletter, blog, website, marketing campaigns, pitch decks and everywhere else, where you communicate about your business.

So if you are thinking, “can I use DALLE?” Remember, you’re not legally protected in any way; you don’t have insurance like you do on JumpStory, and if you get into trouble, DALLE are not going to help you.

Use this new and fun technology for what it is – fun -, but don’t take any chances, when it’s your business that we’re talking about.

About the author

Jonathan Løw is the co-founder of JumpStory

He is one of Denmark’s most well-known entrepreneurs and business authors. He has been nominated as Entrepreneur of the Year and is amongst Denmark’s 100 most promising leaders according to a major Danish business newspaper.

In addition to being a serial entrepreneur, Jonathan Løw is the former Head of Marketing at the KaosPilots – named Top 10 most innovative business schools in the world by FastCompany. He is also former Startup-Advisor and Investor at Accelerace – the leading investment fund for startups in Denmark.

Jonathan Low

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