1693588709 What the latest US court ruling means for the copyright

What the latest US court ruling means for the copyright status of AI-generated art – Art Newspaper

The United States Copyright Office (USCO) has famously denied copyright to selfies taken by non-human animals. In 2019 and 2020, it rejected multiple copyright applications filed by inventor Stephen Thaler on behalf of his artificial intelligence (AI) engine. In a more recent ruling, U.S. District Court Judge Beryl A. Howell decided to uphold the denial, citing the lack of a “guiding human hand” in the creation of the AI-generated artwork.

Thaler’s AI algorithm – referred to in court documents as a “creativity machine” and in Thaler’s words as a “Device for the Autonomous Bootstrapping of Unified Sentience” (Dabus) – had produced an image entitled “A Recent Entrance to Paradise” (2012), for that he had submitted a request. The copyright of the image is transferred to Creativity Machine, which then passes to him as the owner. After his second appointment to the USCO was rejected in 2020, he had gone to court with a lawsuit calling the denial of office “arbitrary, capricious, abuse of discretion and inconsistent with the law.”

The Copyright Act of 1976, published seven years before the official birth of the Internet and some 40 years before “creative” machine output became part of our daily lives, governs most copyright law today. Can we assume that an almost 50-year-old law applies when determining copyright for AI-generated content?

Stephanie Glaser, intellectual property attorney at Patterson Belknap, believes so. “Copyright law is well equipped to deal with the generative AI revolution, just as it has dealt with previous technological revolutions,” Belknap says. “The ownership requirement for ‘human authorship’ provides enough flexibility to allow artists using AI to obtain copyright in their works if they are the ones who control at least some of the creative expression – that’s what makes them artists in the first place and not autonomous machines.”

USCO’s latest artificial intelligence guidelines, released in March, assume that in an AI-generated work of art, “traditional” artistic decisions are made by algorithms, not the people using them. The guidelines state: “Users do not have ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompt writer wants depicted, but the machine determines how.” These instructions are implemented in the output.

In the case of Thaler’s more autonomous creativity machine, where Thaler himself took the position that the AI ​​machine was the author, the argument for the lack of human authorship is more obvious. For the more popular AI image generation engines Midjourney or Dall-E 2, which require a text-based or visual prompt from a user (likely a human) to generate images, the threshold for sufficient human authorship is less clear.

Erin Hanson, a partner at the law firm White & Case who specializes in technology and intellectual property, also relies on copyright law. Citing the clause “Copyright protection survives.” […] in original works of authorship enshrined in every tangible means of expression now known or later developed” as evidence of its flexibility, she emphasizes that “the underlying policy and goal of copyright is to provide incentives for the creative creating human expression”.

Like many others, Hanson is interested in exploring the extent to which AI-generated works may require oversight or intervention (presumably by a human) to ultimately qualify for copyright protection. She points out that neither USCO’s guidelines nor the recent court ruling against Thaler preclude some form of human control or guidance, “which could potentially ultimately lead to copyright protection, but depends very much on how the AI ​​technology actually works and the context.” .” . It would be a case-by-case analysis.”

Nora Scheland, USCO public affairs specialist, also emphasized that decisions are made on a case-by-case basis and that the USCO believes Judge Howell’s ruling is correct. She adds that under the policy, USCO would consider granting copyright if the artist further edits, manipulates or improves the AI-generated product.

What the latest US court ruling means for the copyright

Jon Rafman, 𐤀𐤉𐤔𐤟𐤁𐤅𐤁𐤅𐤕𐤟𐤖 (Puppet Man 1), 2022 Courtesy of the artist and Sprueth Magers

Canadian artist Jon Rafman’s recent series 𝐸𝒷𝓇𝒶𝒽 𝒦’𝒹𝒶𝒷𝓇𝒾, shown at Sprüth Magers in London between February and March this year, is just the ticket. He uses acrylic paint to create brushstroke patterns on a canvas, onto which he then prints AI-generated images. This methodology theoretically meets copyright requirements, something Rafman said he had never considered. He believes in what he calls “the zeitgeist of the Internet,” which embodies the radical promise of open access to all information and fosters a remix culture that thrives online, which is what made him famous in the 2000s.

Rafman sees the Thaler ruling and the populist backlash against AI as “a conservative impulse that fetishizes hand-crafted, labor-intensive art.”

Beyond the Thaler case, Rafman says creating AI-generated images is a craft that lies in the art of writing prompts. “Similar to a poet, the prompter uses language precisely and sparingly,” he says. “The art of creating prompts is translating human imagination into machine-readable instructions. As AI becomes more sophisticated and democratized, the role of the prompt will become increasingly important.” “The writer is taking center stage and could reshape the future of what it means to be an artist.”

Two centuries of science fiction literature and film have failed to prepare us for the growing pains of humanity’s relationship with algorithmic computing. Whatever the future holds, it’s worth noting that the Thaler ruling did not set a precedent for universally granting copyright protection to all AI-generated images.