Why This Award-Winning Piece of AI Art Can’t Be Copyrighted

From Wired:

AN AWARD-WINNING PIECE of AI art cannot be copyrighted, the US Copyright Office has ruled. The artwork, Théâtre D’opéra Spatial, was created by Matthew Allen and came first in last year’s Colorado State Fair. Since then, the piece has been embroiled in a precedent-affirming copyright dispute. Now, the government agency has issued its third and final decision: Allen’s work is not eligible for copyright.

Now, Allen plans to file a lawsuit against the US federal government. “I’m going to fight this like hell,” he says.

The problem? Allen used the generative AI program Midjourney to create his entry, and copyright protections are not extended to artificial intelligence—not even the kind that wows art judges. “It’s in line with previous decisions that require human authors,” says Rebecca Tushnet, a Harvard Law School professor and leading copyright scholar.

It’s a precedent that goes back to 2018 when a photo taken by a macaque was declared public domain because monkeys can’t hold copyright. PETA may beg to differ, but under the law, monkeys and machines have about the same claim on copyright protections right now. (And this isn’t just in the US. In nearly every country, copyright is pegged to human authorship.)

Allen was dogged in his attempt to register his work. He sent a written explanation to the Copyright Office detailing how much he’d done to manipulate what Midjourney conjured, as well as how much he fiddled with the raw image, using Adobe Photoshop to fix flaws and Gigapixel AI to increase the size and resolution. He specified that creating the painting had required at least 624 text prompts and input revisions.

The Copyright Office agreed that the parts of the painting that Allen had altered with Adobe constituted original work. However, it maintained that other parts generated by AI could not be copyrighted. In other words: Allen could copyright parts of the painting, but not the whole thing. This July, Allen appealed once more, arguing that the office had ignored “the essential element of human creativity” needed to use Midjourney. He attempted to use the fair use doctrine to argue that his work should be registered, because it amounts to a transformative use of copyrighted material.

“The underlying AI generated work merely constitutes raw material which Mr. Allen has transformed through his artistic contributions,” Allen wrote.

The Copyright Office didn’t buy it. “The work cannot be registered,” it wrote in its final ruling on September 5.

Allen’s dashed efforts highlight a solidifying legal consensus. This August, a US federal judge dismissed a case brought by Missouri-based AI researcher Stephen Thalus, who has been on a mission to prove that the AI system he invented deserves copyright protections. “Plaintiff can point to no case in which a court has recognized copyright in a work originating with a nonhuman,” wrote Judge Beryl Howell of the US District Court for the District of Columbia in her decision.

Thalus is currently appealing the verdict. Ryan Abbot, his attorney, does not believe that the Copyright Office’s decision on Allen will have an impact on his client’s appeal. But he does see it as having a chilling effect on the wider world of AI-assisted art. “I think it will be a major disincentive to people developing and using AI to make art,” Abbot says.

On this point, Allen (as one might predict) agrees wholeheartedly. “This is the definition of stifling innovation and creativity, the very thing the copyright office claims to protect,” he says.

The Allen ruling may certainly nudge artists to increase the amount of work they put into art produced using AI tools. “Tweaks by a human, if they actually have an aesthetic impact, will likely add enough human authorship to get a copyright on the work as a whole,” Tushnet says.

Allen’s rejected bid demonstrates that it’s entirely unclear how many tweaks constitute human authorship. We know 624 adjustments did not make the work copyrightable—so what about 625? 626?

Link to the rest at Wired

4 thoughts on “Why This Award-Winning Piece of AI Art Can’t Be Copyrighted”

  1. they can copyright the prompt that created it, but the result is a combination of too many things that the creator can’t define (and would it be the creation of the people who made the AI tool or the one who wrote the prompt?)

    no, the AI doesn’t get copyright, but I think it reasonable that the person who create/manipulated the AI does (but it should be a very narrow copyright, as others can use the same tool to create similar things)

    • Mr Lang, “They” probably can’t copyright the prompt that led to the result. “Instructions to produce a useful article,” such as a recipe for sauerbraten, are not copyrightable under US law (or EU law). Cookbooks can be copyrighted because (a) in modern (post-1984-or-so) practice, recipes are accompanied by essays and introductions and reminiscences-of-childhood-meals and such that constitute significant expressive elements that are not mere compilations of facts in which the arrangement of facts is not itself expressive, and (b) all of those photographs. Similarly, short phrases are excluded from copyright — admittedly, this is in regulations and non-force-of-law guidance, not the statute or the case law — absent some other expressive aspect of those phrases (such as arrangement into a haiku).

      All of which exposes the problem: Ideologues like this creator and the OP — who are more interested in “proving” their position that “current-generation-‘AI’ is too creative, nyahnyahnyah” than they are in protecting the work thereby produced — are screwing up on their applications. In short, they didn’t RTFM, or at least didn’t care about the directions: By providing more information than the applications actually ask for, they’re proving that they’re also the students who turned in a five-page essay describing the origins of each of the symbols used when the teacher asked for an answer to “what is the circumference of a circle 3cm in diameter?”

      All that Mr Allen was required to do was note that the original medium of the piece of art was “digital” and that the author and claimant was himself (or his business entity, if he was doing work-made-for-hire for his own business entity). That would have allowed the product of his process to be copyrighted — and that’s all the forms call for. To quote John Belushi, “But nooooooooooooooooooooooo, asserting the superiority of this particular ‘cutting-edge process’ is more important than the law’s existing treatment of the product, at least to Mr Allen and the staff at the OP.”† And if there’s one thing that anyone who has paid any expletive-deleted attention whatsoever to news in the art world or about copyright or just in general in the past three decades, and also has two brain uninfected-by-ideology brain cells to rub together, should be easily able to understand, it is that “artistic process” and “copyright on final product” do not play nice together… and given another uninfected-by-ideology brain cell or two, they’d understand that they never have.

      N.B. This comment is toned down for the family-friendly audience of this blog. I’ve only got a few decades of experience dealing with this sort of nonsense. And my ire is aimed at ideologues like Mr Allen, and his ilk over at the OP, not at Mr Lang.

      † Perhaps they should all take a look at the historical treatment of photographs and lithographs, or of motion pictures, or of phonorecordings, and ask themselves whether just maybe even lawyers might have learned something from that history and anticipated that future developments need to have a default position within copyright law… and to further ask whether backward-mapping their preferred outcome has any implications for the “authorship” of all varieties of joint works. But that, I’m afraid, is not the sort of thinking often engaged in by ideologues.

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