The United States Copyright Office (USCO) has been known to have rejected the copyright Selfies taken by non-human animals. In 2019 and 2020, it rejected several copyright requests filed by inventor Steven Thaler on behalf of his AI engine. in Newer rulingUnited States District Court Judge Beryl A. Howell upheld the rejection, citing the absence of a “human guiding hand” in the creation of the AI-generated artwork.
Thaler’s AI algorithm—referred to in court papers as the “Creativity Machine” and in Thaler’s terminology the Unified Sentiment Autonomous Bootstrap (Dabus)—generated an image titled A modern entrance to heaven (2012) has filed a petition to obtain the copyright of the image for the Creative Machine, which will then pass to him as its owner. After his second appeal to the USCO was denied in 2020, he went to court with a lawsuit calling the office’s denial “arbitrary, capricious, an abuse of discretion, and inconsistent with the law.”
The Copyright Act of 1976, which was enacted seven years before the official birth of the Internet, and about 40 years before automated “creative” production became part of our daily lives, governs the majority of copyright law today. Is it reasonable to expect a nearly 50-year-old law to be applied when determining copyright in AI-generated content?
Intellectual property attorney Stephanie Glaser at Patterson Belknap thinks so. “Copyright law is well-equipped to deal with the generative AI revolution in the same way it has dealt with previous technological revolutions,” says Belknap. “There is enough flexibility in the ‘human authorship’ ownership requirements to allow artists using AI to take ownership of the copyright over their works if they are the ones controlling at least some creative expression – which is actually what makes them artists to begin with and not autonomous machines.”
Recent USCO Guidelines on Artificial Intelligence, published in March, posits that in AI-generated artwork, “traditional” artistic choices are made by algorithms rather than by the people using them. The guidelines state, “Users do not exercise absolute creative control over how these systems interpret prompts and create materials. Instead, these prompts operate more like instructions to a commissioned artist—they specify what the prompt wishes to depict, but the machine determines how these instructions are carried out.” In its outputs.”
In the case of Thaler’s more autonomous creative machine, where Thaler’s own position is that the AI engine is the author, the argument for the lack of human authorship is even clearer. And with the more popular AI-based image generation engines Midjourney or Dall-E 2, which require a text or visual prompt from a user (most likely a human) to generate images, the threshold for sufficient human authorship becomes even murkier.
Erin Hanson, a partner at law firm White & Case specializing in technology and intellectual property law, also believes in copyright law. Citing its provision that “copyright protection continues […] “In original works of authorship fixed in any tangible medium of expression, now known or later developed” as evidence of its flexibility, it asserts that “the fundamental policy, and purpose, of copyright law is to stimulate creative human expression.”
Like many, Hanson is interested in knowing the degree to which monitoring or intervention (presumably by humans) might be required for AI-generated works to ultimately qualify for copyright protection. She points out that neither the USCO Guidelines nor the recent court ruling against Thaler preclude a form of human control or direction “that could ultimately lead to copyright protection, but would depend largely on how the AI technology actually works and the context.” . It will be a case-by-case analysis.”
Nora Sheland, a public affairs specialist at USCO, also stressed that decisions are made on a case-by-case basis, and that USCO believes Judge Howell’s ruling is the correct one. She adds that the guidelines stipulate that the USCO will consider granting copyright if there is further editing, manipulation or enhancement to the AI-generated product by the artist.
The last series of Canadian artist Jon Rafman 𝐸𝒷𝓇𝒶𝒽 𝒦’𝒹𝒶𝒷𝓇𝒾, Appears in Sprüth Magers In London between February and March this year, he fits the bill. It uses acrylic paint to create brush stroke patterns on a canvas, and then prints AI-generated images onto it. This methodology theoretically satisfies copyright requirements, something Rafman says he had never considered. He believes in what he calls “the ‘zeitgeist of the Internet,’ which embodies a radical promise of open access to all information and fosters the mash-up culture that has flourished online,” which is also how he rose to prominence in the 2000s.
Rafman considers Thaler’s judgment, as well as the populist backlash against AI, to be “a conservative impulse in love with hand-made, labor-intensive art.”
Beyond Thaler’s case, Rafman says there’s a craft to creating AI-generated images that lies in the art of writing prompts. “Like a poet, a mentor uses language with precision and economy,” he says. “The artistry in crafting stimuli lies in translating human imagination into machine-readable directives. With the increasing sophistication and democratization of artificial intelligence, the role of the catalyst—the writer—has become pivotal and can reshape the future.” What it means to be an artist.”
Two centuries of science fiction literature and films could not prepare us for the growing pains of humanity’s relationship with algorithmic computing. Whatever the future holds, it is worth noting that Thaler’s ruling did not set a precedent against copyright protection for any image generated by artificial intelligence across the board.
“Infuriatingly humble web fan. Writer. Alcohol geek. Passionate explorer. Evil problem solver. Incurable zombie expert.”