Can AI-generated art be copyrighted? A US judge says not, but it’s just a matter of time

American copyright legislation currently invokes a ‘human involvement’ criterion. But judging by the way smartphones have trivialised the ‘craft’ of photography, something has to give

Evelyn Waugh famously held that taking a keen interest in ecclesiastical matters was often “a prelude to insanity”. Much the same might be said about newspaper columnists taking an interest in intellectual property law. But let us take the risk. After all, you only live once – at least until Elon Musk creates an electronic clone of himself.

On Friday 18 August, a federal judge in the US rejected an attempt to copyright an artwork that had been created by an AI. The work in question is, to the untrained eye at least, no great shakes. It is called “A Recent Entrance into Paradise” and depicts a three-track railway heading into what appears to be a leafy, partly pixellated tunnel and had been “autonomously created” by a computer algorithm called the Creativity Machine.

In 2018, Stephen Thaler, CEO of a neural network firm called Imagination Engines, had listed Creativity Machine as the sole creator of the artwork. The US Register of Copyright denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.

Mr Thaler was not amused and issued a lawsuit contesting the decision, arguing that: AI should be acknowledged “as an author where it otherwise meets authorship criteria”; that ownership of copyright should then be vested in the machine’s owner (ie him); and that the register’s decision should be subjected to judicial review to clarify “whether a work generated solely by a computer falls under the protection of copyright law”.

Which brings us to the district court in Washington DC and Judge Beryl A Howell, who ruled briskly that the register had not erred in denying Thaler’s application for copyright. “United States copyright law,” quoth she, “protects only works of human creation.” She did, however, concede the validity of Thaler’s claim that “copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialised on paper” and went on to point out that the most recent version of the US Copyright Act allows copyright on “original works of authorship fixed in any tangible medium of expression, now known or later developed”.

So the law, in all its majesty, is apparently not blind to technological innovation. But, writes Judge Howell, it has always insisted that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.” Why, had not the supreme court itself ruled that photographs were copyrightable creations of “authors” (AKA photographers)? After all: “A camera may generate only a ‘mechanical reproduction’ of a scene, but does so only after the photographer develops a ‘mental conception’ of the photograph, which is given its final form by that photographer’s decisions.”

Quite so. But when did the supreme court come to this enlightened view? Er, 1884, when the court upheld the power of Congress to extend copyright protection to photography in a case involving a photograph of Oscar Wilde, no less! This is interesting because in 1884 – and indeed until comparatively recently – cameras were essentially dumb, analogue machines. You pointed them at a scene, decided on the required exposure (possibly with the aid of an exposure meter), set the shutter speed and aperture and pressed a button. The image produced by this process was chemically etched on to a glass plate or a strip of celluloid.

And now? Almost all cameras are digital and are in smartphones. You choose what you want to photograph, sure, but everything that happens from then on is done by computation. In many smartphone cameras, the images are “post-processed” by tiny but powerful AIs. (Which is why Apple has a legion of engineers working just on the iPhone camera.) The result is that it’s now rather difficult to take a “bad” photograph – one that that is under- or over-exposed, out of focus or blurred by camera-shake. Accordingly, most of the human “craft” of photography is taken out of your hands. And the creativity involved is boiled down to spotting an opportunity (Cartier-Bresson’s “decisive moment”, perhaps) or a scene, framing it and pressing a button. Everything else is done by AI.

Still, at the moment it meets the “human involvement” criterion of the 1884 judgment and of contemporary copyright legislation. But my hunch is that its days are numbered. Indeed, even Judge Howell seems to agree. “We are approaching new frontiers in copyright,” she writes, “as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work.”

She’s right. And – who knows? – if he lives long enough, Mr Thaler may even get his copyright.

What I’ve been reading

Worldly wisdom
Eleven Theses on Globalisation is the title of a bracing post on his Substack by the economist Branko Milanović.

Well versed
There’s a marvellous essay by the late Seamus Heaney in Salmagundi magazine called Place, Pastness, Poems: A Triptych on the poetic uses of memory.

AI future shock
Read The AI Power Paradox: Can States Learn to Govern AI – Before It’s Too Late?, a sobering essay in Foreign Affairs by Ian Bremmer and Mustafa Suleyman.


John Naughton

The GuardianTramp

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