LENSA AI
You are no doubt aware of this App for digitized imaging. You can upload your photo onto the App and give a “prompt” to the App for downloading the image that you want.
The use of such App raises copyright concerns. Firstly, who owns the copyright of the photo to be uploaded to the App?
Under section 5 of the Copyright Ordinance, a photo/photograph is an “artistic” work. “Photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image is produced and which is not part of a film. The owner of the copyright to that photo is the “author”. Under section 11 of the Copyright Ordinance, the “author” means a person who creates the work. Therefore, the copyright of your photo taken by someone else belongs to the person who took the photo, not you unless it is a selfie of course.
So the upload of your photo taken by someone else on the App should be done with the consent of the person who took the photo, otherwise, there will be an infringement of copyright. Another risk is that someone else who took your photo may upload your photo for imaging without your consent. As the person who took your photo is the copyright owner of that photo, there is not much you can do about this.
Relating to the image downloaded from the App with your “prompt”, who is the copyright owner of that image?
LENSA AI has massive data base which it can plug into to create an image in accordance with your prompt. Under section 7 of LENSA’s current Terms of Use, it is provided the copyright to all the contents on the App (other than User Content) is owned by or licensed to LENSA. So if there should be any dispute between the artists claiming copyright to the contents of the database and LENSA AI, it should not affect the User, unless you are aware of such infringement. The images generated by LENSA AI from the “prompt” are computer-generated. Under Section 11(3) of the Copyright Ordinance, the author (copyright owner) is taken to be the person to whom the arrangement for the creation of the work is undertaken. So will it be LENSA AI (who generates the image with your prompt) or you who gives the prompt for the image generated? There is no obvious answer but we venture to suggest the level of input by your prompt could be a deciding factor. In other words, the more details you provide for the prompt the more likely you can claim to be the copyright owner of the image generated. Obviously, LENSA AI will allow you to use the image generated.