The US Copyright Office has received applications to register a wide variety of arguably creative objects for copyright protection in recent years, including driftwood that has been shaped and smoothed by the ocean, a photograph taken by a monkey, a mural painted by an elephant, and the look of natural stone for its cut marks, flaws, and other qualities. In each case, his answer was the same: no. The Copyright Office Compendium, its guide to policies and procedures, explicitly states that works created by nature, animals or plants cannot be registered. It also includes “works produced by a machine or simple mechanical process that operates randomly or automatically without any creative input or intervention from a human author”.
Some wiggle room may be added to this area as a result of new guidelines issued by the Copyright Office and a recent ruling regarding comic book copyright registration, Dawn Zarya, written by New York-based artist and artificial intelligence (AI) consultant Kris Kashtanova with images generated through the AI platform Midjourney. The Copyright Office granted copyright to the book as a whole but not to the individual images in the book, claiming that these images were not sufficiently produced by the artist.
Perhaps recognizing that there is an increasing number of images that are man-made and AI-modified or AI-generated and human-modified, and that Zarya won’t be the last of its kind, the Copyright Office in March offered additional clarifications to its “human authorship requirement,” some of which outline a way forward for artists in this new field. In this new clarification, the Copyright Office asserted that where “the traditional elements of authorship of a work have been produced by a machine, the work has no human authorship and the Office does not will not record”. However, there may be cases in which “a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or curate the generated material by the AI in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship”.
The Copyright Office has likened some uses of artificial intelligence to more traditional mechanical tools, such as a visual artist or musician using Photoshop to create different sounds using a guitar pedal, which would be permitted for those applying for copyright registration: “[W]What matters is the extent to which the human has exercised creative control over the expression of the work and has “actually formed” the traditional elements of authorship.
I’m happy that the [Copyright] The office is willing to assess AI-assisted work
Van Lindberg, copyright lawyer
A partial and temporary solution
Only human authors or artists should be named on registration applications, with any artificial intelligence technologies noted in “a general statement that a work contains AI-generated material. The Office will contact the applicant once the application has been reviewed and will determine the next steps. In other words, decisions will be made on a case-by-case basis.
The process of publishing policies regarding the use of AI in the arts is, to some extent, a work in progress, and the Copyright Office has plans for “public listening sessions” throughout 2023 to get more information about the technologies and their impact.
Van Lindberg, a San Antonio, Texas-based intellectual property attorney who represented Kashtanova before the Copyright Office, said “thousands of AI-assisted works are generated every day” and that new guidelines on how it will deal with this type of artwork promulgated by the Office “is a step towards its acceptance. I am pleased that the Office has indicated that it is willing to assess AI-assisted works for registration. »
Even though the expanded guidelines don’t go as far as Kashtanova would have liked, “there’s a lot in these guidelines that I agree with,” says Van Lindberg. “The Copyright Office is correct that copyright requires human authorship, and human-provided creative elements are what lead to protection.” He adds that “non-human authorship is still a hurdle and will be until this is changed by the Supreme Court or Congress.”
Where humans end and machine learning begins is a hard line to draw. Scott Hervey, intellectual property attorney and partner at the California-based Weintraub Law Group, says that “a human being can select or arrange AI-generated material creatively enough that the resulting work in as a whole constitutes an original work of authorship.Or, an artist may modify the material originally generated by AI technology to such a degree that the modifications meet the standard of copyright protection.In these case, copyright will only protect the human aspects of the work, which are independent and do not affect the copyright status of the AI-generated material itself.
These scenarios recognize that AI is a tool to be used, but it is also intended to create outcomes independent of humans. “If humans can control the end product,” he says, “is that really AI?”
Another complex copyright issue concerns AI platforms powered by existing copyrighted images, which users of this technology can modify to produce derivative images that can be offered for sale. Getty Images and a number of artists have filed lawsuits against some of these platforms – Stable Diffusion, Midjourney and Deviant Art – for copyright infringement. These cases have not yet been heard by the courts. James Lorin Silverberg, an intellectual property attorney in Washington, D.C., says the Copyright Office is considering whether or not changes should be made to federal copyright law regarding the relationship between original copyrighted material and AI-generated images based thereon. . “It’s possible that an AI work may not present the copyrighted content of the underlying work at all, but simply learn from it,” he says.
