Legal Frontiers in Copyright: The Case of AI-Generated Artwork

With the dramatic development of technology, artificial intelligence has grown so big that it now transcends almost all areas of industries. Especially in the art industry, AI has emerged as a powerful collaborator in art as its algorithms generate intricate compositions and digital masterpieces. Following this trend, such attributions of AI-generated artworks have raised questions regarding ownership and protection issues, alarming awareness of the relationship between such works and copyright law.

Companies like OpenAI and StabilityAI started to release AI-enabled text and image generators beginning in late 2022. Initially, the Copyright Office was not prepared to decide on these works’ eligibility as copyrighted works until 2022, when author Kris Kashtanova’s AI-created work was approved as a copyrighted work. Unfortunately for Kashtanova, after its original approval, the Copyright Office discovered that the images of Kashtanova’s work were issued by using an AI generator, Midjourney, so it put its decision under review. After the review, the Copyright Office revoked its original certification and issued a new certification that restricted its protection to human-made creations which included only the writing and other original elements from Kashtanova’s work.

This March decision by the United States Copyright Office came back to an issue in August 2023, when a federal judge in Washington D.C. reaffirmed this decision. This ruling is significant because it is the first ruling of the United States to define the legal protections for AI-generated art. The artwork at issue was a work done by computer scientist Stephen Thaler, which used “Creativity Machine,” an AI system of Tahler’s design. Judge Beryl A. Howell of the United States District Court for the District of Columbia followed the United States Copyright Office’s decision and denied granting copyright protections to Thaler’s artwork.

Although unsuccessful, Thaler had been attempting to get copyright protection for his AI-generated artworks for several years. In 2018, he requested the United States Copyright Review Board to register an artwork to Creativity Machine. Not surprisingly, the board denied granting copyright to it and concluded the question of whether copyright applies to AI by restricting the copyright’s applicable scope to humans. However, should AI-generated artwork created based on human ideas be denied copyright protection simply because it was not directly crafted by a human? After all, isn’t it the humans who derived the appropriate technology and algorithms to bring forth that artwork’s creation? It seems necessary to delve deeper into how Thaler had come up with his artwork at dispute, “A Recent Entrance to Paradise.”

Since the 1980s, Thaler’s main focus of his work has been exploring artificial intelligence on how his version of AI, Creativity Machine, alters its creative expression based on the different modes aiming to show depressive and manic cycles. His work, “A Recent Entrance to Paradise” is part of a series Creativity Machine created on the subject of near-death experience. The Court ruled that since Thaler “neither provided evidence that the work was the creation of human authorship nor convinced the Office to depart from a century of copyright jurisprudence,” his work cannot be protected by copyright law. Admittedly, Thaler himself stated in the court document that the work “was autonomously created by a computer algorithm running on a machine.” However, the idea to explore AI’s creative expression in near-death experiences is still from Thaler. Isn’t this sufficient proof that the human mind and creative expression are intertwined? Where is the exact boundary to decide which works are protected by copyright law and which are not? The question of whether this is an appropriate decision to articulate the prerequisite for copyright protection, the nexus between the human mind and creative expression, remains uncertain.

Recognizing this issue, the Court mentioned future challenging questions about what degree of human involvement is necessary for such artwork to be qualified for copyright protection: “[U]ndoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works.” However, Judge Howell saw Thaler’s case as “not so complex” because of Thaler’s statement in his copyright application that he was not directly involved in creating the work.

Additionally, the emergence of AI-generative platforms has broadened the role of a judge, intensifying the legal challenges regarding appropriation art. Such legal disputes often bear unsatisfactory conclusions since they bestow an art critic’s role to the judge and the judges are being asked to rule on the very nature of art. For example, in a legal dispute between the Andy Warhol Foundation and photographer Lynn Goldsmith, the main issue was whether Warhol’s use of Goldsmith’s image was qualified as “fair use,” and the Supreme Court considered four factors to determine fair use: (1) the purpose and character of the use; (2) nature of the copyrighted work; (3) the amount and substantiality of the portion of the work used; and (4) the effect of the use on the market or value of the copyrighted work. This broadened the judge’s role as an art critic who has to determine its artistic value. Lacking knowledge of art, the Court allowed to hear from the opinions of experts, like Artist Barbara Kruger. However, the conclusions are more likely to be unsatisfying considering judges are the ones who interpret the laws, not art.

Now, it is even more complex that courts have to deal with millions of digital artworks from AI-generated platforms. Thaler appealed, disagreeing with the court’s interpretation of the Copyright Act. Thaler contends that Protecting AI-generated artworks by copyright would inspire creativity, eventually fulfilling the intentions of copyright law. According to Thaler, copyright protection extends to all “original works of authorship fixed in any tangible medium” of expression and the denial of applying copyright protection to AI-generated works is a violation of such principle.

A common dilemma when dealing with the Copyright Act and artworks is that the Copyright Act should not restrict the creative process but promote it to facilitate cultural exchange, and it should protect the original creator’s legal rights at the same time. Balancing these two principles of the Copyright Act, the judges now have to act as art critics and determine whether the fair use was appropriate for the AI-generated artwork and whether the work bestows authorship to the person who operated it even though was not directly involved in creating the work. As a future legal expert, what do you think about this issue?

Article Written by Diane Hong

Sources:

Cancellation of Kris Kashtanova’s AI-created work’s copyright certification: https://cdn.arstechnica.net/wp-content/uploads/2023/02/AI-COPYRIGHT-decision.pdf

AI Cannot Hold Copyright Artworks, U.S. Review Board Rules: https://www.artnews.com/art-news/news/ai-copyright-art-us-review-board-1234619774/

AI-created images lose U.S. copyrights in test for new technology: https://www.reuters.com/legal/ai-created-images-lose-us-copyrights-test-new-technology-2023-02-22/

US Copyright Office: AI-Generated Works Are Not Eligible for Copyright: https://www.artnews.com/art-news/news/ai-generator-art-text-us-copyright-policy-1234661683/

Court’s document on the Reconsideration for Refusal to Register a Recent Entrance to Paraidse: https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf

Copyright Registration Guidance for the Works Containing Material Generated by Artificial Intelligence: https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence

How a Supreme Court Case About Andy Warhol’s Paintings of Prince Could Reshape Freedom of Expression: https://www.artnews.com/art-news/news/andy-warhol-lynn-goldsmith-supreme-court-1234641880/