By Gary Symons
TLL Editor in Chief
Artificial Intelligence fought the law, and the law won, thanks to a US court that confirmed only human works of art can be copyrighted.
In a case heard in a US District court in Washington, D.C., Judge Beryl Howell supported the US Copyright Office’s rejection of an application filed by computer scientist Stephen Thaler on behalf of his DABUS system. The work ‘A Recent Entrance to Paradise’, seen above, was said by Thaler to have been created entirely by his AI system DABUS.
The case is a critical one for the future of human creators, as well as licensing companies, both of whom could see their creations replaced by cheaply generated art, videos and written works from AI bots. As one example, the licensing company Getty Images has sued the generative AI company Stability AI for copyright infringement, charging the company trained its AI bot by copying images from its database.
The decision this month follows previous losses for Thaler, who also tried to patent inventions he said were created by his DABUS AI bot, also known by the unwieldy name ‘Device for the Autonomous Bootstrapping of Unified Sentience’.
The case follows a key decision by the US Copyright Office. As reported in TLL in March this year, the Copyright Office issued a new policy that says works created with the help of artificial intelligence may be copyrighted, but only if it a human being is the guiding mind in the creation of that work. In other words, AI can be used to assist an artist or writer, but cannot replace them.
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As of March, all copyright applicants are legally required to disclose when their work includes AI-generated material. As well, any previously filed application that does not disclose the use of generative AI must be corrected, or copyright could be withdrawn.
However, what really has the lawyers working overtime is the new guidance on what can and cannot be protected.
Prior to the guidance issued on Wednesday, copyrights could only be issued for images, videos, or stories created by human beings. The new policy from the US Copyright Office says a copyright can be issued if a work is created that combines the work of an AI, like ChatGPT or DABUS with the work of a human being. “In each case, what matters is the extent to which the human had creative control over the work’s expression and actually formed the traditional elements of authorship,” the office said.
The guidance document was issued not long after the US Copyright Office considered for the first time whether a work created largely by the generative AI bot MidJourney could be issued a copyright.
“The Office reviewed a registration for a work containing human-authored elements combined with AI-generated images,” the Office said in its policy statement. “In February 2023, the Office concluded that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.”
In that case, the Copyright Office rejected parts of a claim for copyright protection for a graphic novel entitled Zarya of the Dawn, by Kris Kashtanova. (Shown in photo at top) However, Kashtanova viewed the ruling as a partial victory, because the Office did grant protection for some parts of her claim.
Kashtanova used the “generative AI” program MidJourney to produce a series of images which were used in the graphic novel alongside her human generated storyline.
The question of whether AI-generated work can be protected by copyright is key to several disputes ongoing in the worlds of art, film, television, publishing and licensing, as all of them depend on trademarks and copyrights to protect their work. The current strike by US script writers is partly centred on this exact question.
In screenwriters’ contract talks, the Writers Guild of America said it would allow for the use of AI, but only insofar as it was a tool for them to use in their own work. The Guild has said it would be willing to adopt a policy that would allow human writers to shape stories with help from AI software.
In a similar vein, members of the Screen Actors Guild are also striking, partly over fears that some extras and actors could be replaced by Computer Generated Images generated from their own likeness by AI bots.
But Thaler is on the other side of that debate, and is among the main proponents pushing for copyright protection of works created by AI. Thaler is the CEO of the neural network firm Imagination Engines.
In 2018, he revealed that an AI system called the Creativity Machine was the sole creator of an artwork called A Recent Entrance to Paradise, which was described as “autonomously created by a computer algorithm running on a machine.”
The Copyright Office denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.
Thaler, however, listed himself as the owner of the copyright under the ‘work-for-hire doctrine’, and sued in a lawsuit contesting the denial and the office’s human authorship requirement.
Thaler argued in court that AI should be considered “as an author where it otherwise meets authorship criteria,” with any ownership vesting in the machine’s owner. His complaint argued that the office’s refusal was “arbitrary, capricious, an abuse of discretion and not in accordance with the law” in violation of the Administrative Procedure Act, which provides for judicial review of agency actions. The question presented in the suit was whether a work generated solely by a computer falls under the protection of copyright law.
The Copyright Office, however, argued that it has always held that copyright protection may only be granted for works created primarily by the human mind. For example, in the famous ‘Selfie Monkey’ case, the Copyright Office ruled that an admittedly hilarious photo of a monkey that had taken its own photo with a camera could not be copyrighted, because the photo was not taken by a human being. The fact the camera was owned by a human being who wanted the copyright was not enough to impress the Office.
Likewise, in the Thaler case, the judge ruled that just because Thaler owns the machine that created the art, does not mean it can be protected by copyright.
“In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No,” Howell wrote. Howell ruled that copyright law in the United States “… protects only works of human creation” and is “designed to adapt with the times.” Human creativity, Howell said, is “at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.”
That ruling will come as a relief to artists and creators of all types, who have already seen that their work has been ‘studied’ by AI bots, which then churn out thousands or millions of works in the same style as the artist. Unless the ruling is overturned by a higher court, the decision means that companies will not be able to simply replace human artists with AI-generative bots when creating novels, film scripts, artwork, or even product designs.
The case is far from over, however, as Thaler’s attorney, Ryan Abbott, said his client strongly disagrees with the decision and will appeal.
The Copyright Office said in a statement that it believes “the court reached the correct result.”
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