I’m both an artist and a trial attorney, For that reason, I am particularly fascinated by the question of whether AI-generated art can be copyrighted the same as art created by artists like me.
The issue of ownership of art, music, and writings generated by artificial intelligence (AI) is a complex and emerging area of law, and there is no straightforward answer to this question.
In general, copyright law gives the owner of the copyright exclusive rights to reproduce, distribute, and display the work, and to create derivative works based on the original. However, determining who owns the copyright in works generated by AI can be challenging, as these works often involve multiple inputs from different sources, including the AI algorithms themselves, the data used to train the algorithms, and the creative input of human developers and users.
Some experts argue that the copyright for AI-generated works should be attributed to the user of the AI system, while others suggest that the copyright should be attributed to the AI algorithm itself. In some cases, it may be possible to assign copyright ownership to the company that developed the AI system or to the person or organization that commissioned the work.
However, as AI-generated works become more prevalent, there is likely to be increased debate and discussion about how to allocate ownership of these works.
Judges and courts will spend the next few years trying to apply century-old laws to legal questions raised by artificial intelligence. Here is a summary of some of the challenges they face.
What is AI?
The best definition of artificial intelligence was provided to me by a chat bot. I asked ChatGPT to define AI and here was its response:
“Artificial intelligence, often abbreviated as AI, refers to the ability of machines and computer systems to perform tasks that typically require human intelligence, such as learning, problem-solving, perception, and decision-making. AI involves the development of algorithms and computer programs that can analyze data, recognize patterns, and make decisions based on that data, often in a way that can mimic human reasoning.
There are various types of AI, including:
Rule-based or expert systems that use a set of predefined rules to make decisions.
Machine learning, which involves training algorithms to learn from data, and can be supervised, unsupervised, or semi-supervised.
Deep learning, a subset of machine learning that uses neural networks with multiple layers to process complex data.
Natural language processing, which allows computers to understand and generate human language.
Robotics, which combines AI with mechanical and electrical engineering to create machines that can perform tasks autonomously.
AI is used in a wide range of applications, from speech recognition and image processing to finance, healthcare, and transportation. As technology advances, the potential uses for AI are likely to grow, and AI is expected to play an increasingly important role in many aspects of our lives.”
Tech is Investing Big Money into Artificial Intelligence.
AI is the hot new topic in the tech world. Microsoft invested $10 billion in Open AI, the creator of ChatGPT and Dall-E. Microsoft plans to incorporate Open AI’s databases and algorithms into its newly resurrected Bing search engine. Not to be outdone, Google announced that it is working on its own AI assisted chat bot called Bard.
Several websites now allow users to create digital images which can be mistaken for art created by human artists.
I asked ChatGPT to describe its sister program, Dall-E. Here was its response:
“DALL-E is an AI model developed by OpenAI that can generate high-quality images from textual descriptions. It is a variant of GPT-3, a language model capable of generating human-like text. However, DALL-E goes beyond text generation to create images that match the descriptions provided.
Specifically, DALL-E can create images of almost any object or scene, ranging from everyday objects to surreal and fantastical concepts. It can also generate compositions that feature multiple objects or scenes, as well as manipulate the objects it creates in different ways.
DALL-E works by using a combination of natural language processing and generative adversarial networks (GANs), a type of neural network that learns to generate images by studying a dataset of examples. The model can create images in a variety of styles, including realistic, cartoonish, and abstract.
Some potential applications of DALL-E include product design, art and media creation, and visual storytelling. However, the technology is still in its early stages, and further research is needed to explore its full potential.”
Game designer Jason Allen recently took first place in the Colorado State Fair art competition with a digital piece of art generated using an AI tool developed by the research lab Midjourney. His work, “Théâtre D’opéra Spatial,” has shaken the art world and has ignited debate over whether AI-generated art will overtake art created by humans.
Capital Records recently signed FN Meka, a virtual “robot rapper” powered by artificial intelligence. FN Meka had more than 10 million followers on TikTok. The record label later dropped the robot rapper because of controversial lyrics it generated.
As of this month, over 200 books listed for sale on Amazon identified ChatGPT as the author or co-author of the book. News organizations and online commercial blogs have announced plans to cut their staffs and to use AI-generated news stories in place of human generated stories. ChatGPT reportedly passed a medical board exam and at least part of one state’s bar exam.
Who is the “Author” for Purposes of Copyright Law?
Article I, Section 8, Clause 8 of the Constitution gives Congress the power to “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…”
So, who is the “author” for purposes of copyright law? Is it the developer of the AI program? Is it the AI itself? Is it the person who created the prompt? Or is it part of the public domain and owned by nobody? What if the prompt is created by artificial intelligence and not by a human? These are just some of the legal questions facing today’s courts and judges.
Important Legal Case to Watch
Stephen Thaler, the president and CEO of Imagination Engines, applied for a copyright for a piece of digital art entitled “A Recent Entrance to Paradise”. The artwork was created by Thaler’s artificial intelligence program known as DABUS. The Copyright Office refused to grant him a copyright on two occasions finding that the work created by the inventor’s AI “lacks the human authorship necessary to support a copyright claim.”
Thaler sued the U.S. Copyright Office (“USCO”) and its director Shira Perlmutter in United States District Court for the D.C. Circuit. A motion for summary judgment is currently pending. Both parties assert that there are no issues of material fact and that the court should rule in their favor as a matter of law. A ruling on the motion may have a profound impact on the ownership of AI-generated art, music, and writings.
In his motion for summary judgment, Thaler argues that “[t]he plain language of the Copyright Act (the “Act”) does not restrict copyright to human-made works, nor does any case law. The USCO mistakenly relies on dicta, predominantly from cases predating even the existence of modern computers, together with inappropriate reliance on a technical report that pre-dates autonomously creative AI. Unfortunately, the USCO’s policy frustrates the purpose of the Act which is to promote the dissemination and creation of works. By contrast, allowing copyright on AI-Generated Works encourages the development and use of creative AI which results in the generation of more works, and provides incentives for those works to be disseminated.”
In its response to Thaler’s motion for summary judgment, the USCO argued that “[i]n rejecting the application, the Office confirmed that copyright protection does not extend to non-human authors. As described herein, the Office’s determination was based on the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship.”
I’ll post the trial court’s ruling on Thayler’s motion for summary judgment when it becomes available. In the meantime, be aware that art, music, and writings created by AI may be part of the public domain and you may not be able to obtain a copyright to protect the works.