In February 2022, the US Copyright Office denied a copyright request for an AI algorithm called the Creativity Machine. The one developed by the inventor of the AI, Dr. Stephen Thaler, submitted the application was reviewed by a three-person panel. The artwork, titled “A Recent Entrance to Paradise,” featured train tracks leading through a tunnel surrounded by greenery and bright purple flowers.
Thaler submitted his copyright request, identifying the “creativity machine” as the author of the work. Since the copyright request was for the machine, it did not meet the “human authorship” requirement associated with copyright protection.
“Although the Board is not aware of any US court that has examined whether artificial intelligence can be the author for copyright purposes, the courts have consistently held that non-human utterances are ineligible for copyright protection,” the Board said in the copyright decision .
Founder of Imagination Engines
(Courtesy of Imagination Engines, Inc.)
Thaler says the law in this case is “humane.”
While the copyright application urged to give credit to the Creativity Machine, the case raised questions about the true author of the AI-generated art.
Attorney Ryan Abbott, a partner at Brown, Neri, Smith & Khan LLP, helped Thaler “challenge some of the established dogmas about the role of AI in innovation” as part of an academic project at the University of Surrey. Abbott explains that it’s difficult to copyright AI-generated art because it requires human authorship, which he says isn’t “substantiated in statutes or relevant case law.” There is an assumption that only humans can be creative. “From a political point of view, the law should ensure that the work of a machine is not legally treated differently from the work of a human being,” he says. “This will encourage people to make, use and build machines that generate socially valuable innovation and creative work.”
From a legal perspective, AI-generated work sits on a spectrum where human involvement is at one extreme and AI autonomy is at the other.
“It depends on whether the person has done something that would traditionally qualify them as an author, or whether they’re willing to look to some non-traditional criteria for authorship,” says Abbott.
“This question of owning an AI-generated work has been debated for decades, but not in a way that has had much commercial significance.”
In Epstein’s article, he uses the example of the painting “Edmond De Belamy,” a work generated by a machine learning algorithm that sold for $432,500 at Christie’s art auction in October 2018. He explains that the work would not have come into existence without the people behind the code. As artworks generated by AI gain commercial interest, more emphasis is placed on the authors, who deserve credit for the work they put into the project. “How you talk about the systems has very important implications for how we assign credit responsibility to people,” he says.
This has raised concerns among illustrators about how AI-generated art is acknowledged, particularly those who feel the programs may be drawing from their own online work without citing or compensating for it. “A lot of professionals fear it will take away their jobs,” says illustrator Gurney. “It’s already starting to happen. The artists most threatened by it are editorial illustrators and conceptual artists.”
It is common for AI to generate images in a specific artist’s style. For example, if an artist is looking for something in the style of Vincent van Gogh, the program will use their pieces to create something new in a similar style. It can also get muddy here. “It’s hard to prove that a specific copyrighted work or works have been infringed, even if an artist’s name is used in the prompt,” says Gurney. “What images were used in the input? We do not know it.”
“It’s hard to prove that a specific copyrighted work or works have been infringed, even if an artist’s name is used in the prompt,” he says. “What images were used in the input? We do not know it.”
Legally, the rightholders are concerned with granting permission or receiving compensation for their work to be incorporated into another piece. Abbott says these concerns, while valid, haven’t quite caught up with technology. “The rightsholders had no expectation when doing the work that the value would come from training machine learning algorithms,” he says.
A 2018 study by The Pfeiffer Report wanted to find out how artists were reacting to advances in AI technology. The report found that after surveying more than 110 creative professionals about their attitudes towards AI, 63% of respondents said they are not afraid of AI threatening their jobs. The remaining 37% were either a little or extremely afraid of what this might mean for their livelihood. “AI will have an impact, but only on productivity,” said Sherri Morris, director of marketing, creative and brand strategy at Blackhawk Marketing, in the report. “The creative vision has to be there first.”
Illustrator and artist Jonas Jödicke worked with WOMBO Dream, another AI art creation tool, before gaining access to DALL-E 2 in mid-July. From his experience as an illustrator using AI, he says it could be a “big problem” if programs take his own image and do something similar in his style. He explains that programs like DALL-E draw from so many sources from all over the Internet that it can “build something on its own,” quite unlike other works.
(Courtesy of Jonas Jödicke)
Jödicke acknowledges concerns about art theft, particularly as someone whose work has been stolen and who used to sell products on Amazon and Alibaba. “If you upload your art online, you can be sure that it will eventually be stolen, especially if you have a larger social media reach,” he says.
Regardless, Jödicke sees AI as a new tool for artists. He likens it to some people’s regressive attitude toward digital artists using programs like Adobe Creative Suite and Pro Tools. Sometimes artists using these programs are accused of not being “real artists” even though their work is unique and full of creativity. “You still need your artistic skills and know-how to really enhance these results and make them presentable and beautifully rendered,” he says.