AI Art Copyright Ruling Invites Future Battles Over Human Inputs
Courtesy of Bloomberg Law:
Isaiah Poritz
Legal Reporter
Art generated from simple prompts likely uncopyrightable
Future cases to weigh how much human input is needed
A Washington, D.C., federal court’s first-of-its-kind ruling that artwork generated by artificial intelligence can’t receive the same copyright protections afforded to human-created art portends more complicated cases as AI tools continue to disrupt creative industries.
Although US District Judge Beryl Howell reiterated in her ruling last week that “human authorship is a bedrock requirement of copyright,” she hinted at “challenging questions” arising when artwork includes a greater level of human input into the AI-generated content.
Video: Can Copyright Law Stop Generative AI?
Howell upheld a decision by the US Copyright Office to deny a copyright registration for Stephen Thaler, a computer scientist whose generative AI “Creativity Machine” created a colorful two-dimensional image of a train track running through an overpass.
Thaler, who has sought IP protections for AI-generated art and inventions around the world—mostly without success—said in his registration application the art piece titled “A Recent Entrance to Paradise” was “autonomously created” by a computer algorithm.
“A Recent Entrance to Paradise,” a visual art piece purportedly created by computer scientist Stephen Thaler’s generative AI “Creativity Machine”
Source: court document
The judge said her decision was limited to what he put in his application to the Copyright Office. That could create an opening for future cases where an artist claims greater involvement in crafting AI-generated art, attorneys say.
“If Thaler were to do it over again, he may have crafted his copyright application differently,” said Suzanne Hengl, an attorney at Baker Botts LLP.
“It does become a more complicated and nuanced question when you have a situation where there really is a human being who is working to craft the algorithms and making choices that have a significant impact on how the AI actually operates,” she said.
Monkey Selfies
The narrow ruling in favor of the Copyright Office wasn’t a surprise to many copyright practitioners, who pointed to decades of case law indicating that legal protections for creative expression are meant only for human authors.
Thaler argued in his lawsuit that the Copyright Act doesn’t define the word “author” and that an AI program should be acknowledged as an author when it meets traditional authorship criteria. Copyright ownership in that case should be granted to the owner of the AI, he said.
He likened generative AI to the advent of other new technologies like the camera and radio, which at the time posed novel questions about the scope of copyright law. He argued courts have historically used an expansive reading of the Copyright Act to promote more creation.
But Howell disagreed with that interpretation. When the Supreme Court ruled in 1884 that a photograph is protected by copyright, the decision rested “on the fact that the human creator, not the camera, conceived of and designed the image and then used the camera to capture the image,” Howell wrote.
She pointed to a high-profile case of an Indonesian crested macaque who had taken a photograph of himself with a nature photographer’s camera. The US Court of Appeals for the Ninth Circuit ruled in 2018 that the monkey couldn’t sue for copyright infringement, finding that only humans have legal standing under the Copyright Act.
People view the “selfie” of Naruto, a Celebes crested macaque who triggered a camera left by a British nature photograph.
Rob Beck/AFP/Getty Images
Other courts found that a text claimed to have originated from celestial beingsand spirits isn’t eligible for copyrights without human input. In another case, the Seventh Circuit refused to recognize a copyright for the design of a cultivated garden because the garden owed its “form to the forces of nature,” not human expression.
Courts have used similar reasoning to deny patent applications for AI-generated inventions. Thaler lost an appeal of a US Patent and Trademark Office denial of an application naming his AI system as the sole inventor.
Agatha Liu, an attorney at Duane Morris LLP, said she wasn’t surprised by the ruling given how IP laws are structured. “We’re trying to reward the inventors on the patent side and authors on the copyright side for their original thought or original creativity,” she said.
Thaler’s attorney Ryan Abbott of Brown Neri Smith & Khan LLP said he plans to appeal the ruling.
‘Where the Rubber Meets the Road’
If an artist feeds a simple prompt into an AI program— such as asking OpenAI Inc.'s DALL-E to “create a ‘Game of Thrones’ character in the style of Francisco Goya"—the output mostly likely isn’t copyrightable based on the D.C. court’s opinion, said Shubha Ghosh, an intellectual property law professor at Syracuse University.
“The Copyright Office and Congress don’t want to give incentives to somebody who just presses a button or throws prompts around,” Ghosh said. “They want to provide incentives for people who involve creativity and original expression.”
That basic “Game of Thrones” prompt is only an idea, which isn’t protected by copyright law. But if an artist draws a Goya-themed “Game of Thrones” character and feeds the drawing into an AI program to help refine the image, the case for a viable copyright becomes much stronger, Ghosh said.
The Copyright Office’s policy guidance from March also says that AI outputs from basic prompts aren’t copyrightable. The office had found that an AI-assisted comic book called “Zarya of the Dawn” was copyrightable to the extent that artist Kristina Kashtanova arranged that the AI-generated images in a creative way and added text.
But that guidance—and the court’s recent opinion—didn’t provide any more concrete examples to show what level of human input is needed to support a copyright claim, setting the stage for additional litigation to find that line.
“That’s going to be where the rubber meets the road heading forward,” Hengl said. “It will give content creators some food for thought: What are we actually doing here to impact whatever the output is, what is the creative process we are going through?”
The case is Thaler v. Perlmutter , D.D.C., No. 1:22-cv-01564, 8/18/23 .
To contact the reporter on this story: Isaiah Poritz in Washington at iporitz@bloombergindustry.com
To contact the editors responsible for this story: Adam M. Taylor at ataylor@bloombergindustry.com; James Arkin at jarkin@bloombergindustry.com
