Agreed.
Although I suspect it’s also a case that’s not going to age well, but will still be cited long after it stops being a relevant legal precedent.
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I don’t understand how the AI created the work all by itself. Yes, I’m contesting the “uncontested fact” of the case. In my eyes, the judge was calling the bluff of the tech company that was saying their AI did the work all by itself. AFAIK, AI programs don’t do anything without a prompt. My camera can’t produce photographs all by itself, and even though I don’t know how it turns photons into jpegs, I still get the copyright on the pictures I prompt it to take. If my camera just decides one day that it can and does start taking pictures, then that’s the day I will welcome our new photographic overlords.
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It is very clearly saying this. Here’s a link to the full opinion. But for completeness, the plaintiff’s claim was this:
After its creation, plaintiff attempted to register this work with the Copyright Office. In
his application, he identified the author as the Creativity Machine, and explained the work had
been “autonomously created by a computer algorithm running on a machine,” but that plaintiff
sought to claim the copyright of the “computer-generated work” himself “as a work-for-hire to
the owner of the Creativity Machine.” . . . Plaintiff requested reconsideration of his application, confirming that the work “was autonomously generated by an AI” and “lack[ed] traditional human authorship,” but contesting the Copyright Office’s human authorship requirement and urging that AI should be “acknowledge[d] . . . as an author where it otherwise meets authorship criteria, with any
copyright ownership vesting in the AI’s owner.”
He’s very clearly saying the work was created by the AI without any additional post creation editing by him. He’s wanting the AI to be considered the creator of a work-for-hire, much like how a sculpture created by a sculptor on commission will be listed as the creator but the copyright owned by whoever commissioned the work.
And then the crucial part of the judge’s decision:
Copyright has never stretched so far, however, as to protect works generated by new
forms of technology operating absent any guiding human hand, as plaintiff urges here. Human
authorship is a bedrock requirement of copyright. That principle follows from the plain text of the Copyright Act. The current incarnation of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”
To be sure, as plaintiff points out, the critical word “author” is not defined in the Copyright Act. See Pl.’s Mem. at 24. “Author,” in its relevant sense, means “one that is the source of some form of intellectual or creative work,” “[t]he creator of an artistic work; a painter, photographer, filmmaker, etc.” Author, MERRIAM-WEBSTER UNABRIDGED DICTIONARY, Login | Merriam-Webster Unabridged (last visited Aug. 18, 2023); Author, OXFORD ENGLISH DICTIONARY, Oxford English Dictionary (last visited Aug. 10, 2023). By its plain text, the 1976 Act thus requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is yes.
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That actually all supports my point.
- The artist used an AI to create the work
- The artist attempted to list the art as being created by the AI in his copyright application, as a part of a troӏl (or experiment, more generously) to see if works “created” by an AI could be copyrighted
- The copyright office and the judge both agreed that works of art simply cannot be “created” by an AI, and that copyright can only be awarded to legal persons.
- The copyright office and judge are not saying that using an AI means the work cannot be copyrighted, they are simply saying that an AI cannot be the legal creator.
From the ruling:
- The artist “identified [i.e. named] the author as the Creativity Machine”
- The artist “urged that AI should be “acknowledged as an author”
- The ruling specifically says that “By design in plaintiff’s framing of the registration application,” they’ve made it a question about whether the AI can be the creator.
The judges agree that all sorts of machine-made art can be created by an artist, if there is a “guiding human hand” (which anyone could see clearly is in this art, because the artist made the program, conceptualized the series, and made the AI produce images he wanted). But the artist deliberately (and I’d say falsely) claimed that the work was “autonomously created,” completely “absent any guiding human hand, as plaintiff urges here” (this is what the court is saying he claims).
Since the claimant is urging that the work be considered “autonomously created, absent any guiding human hand,” and that the AI is the sole creator, the court goes ahead and accepts that framing a priori, and so is forced to conclude that the work has no human creator. Therefore, it cannot be copyrighted.
But this was by design in the way the artist deliberately framed it (as the court explicitly says). He wanted to troӏl the office and get a work not created by a human to be copyrighted. But the court is not making an expansive ruling that no work that used an AI in its creation is not protected by copyright, and it’s not even saying that this work could not be protected by copyright, if the artist had not deliberately framed it the way he did.
It’s a bit like if I designed a system that made rocks fall in cool artistic ways, took the best one, and then went to the copyright office and said “Gravity created this work all on its own, without any guidance. I’d like Gravity to be listed as the creator, and then transfer the copyright to me as work-for-hire.” They couldn’t possibly grant that, even though the work itself would have been copyrightable if I hadn’t decided to troӏl them that way. Gravity can’t be listed as the author, and an “autonomous AI” can’t be listed as the author.
“Must that originator be a human being to claim copyright protection? The answer is yes.”
Exactly.
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I would say that the AI is a tool, just like a pencil or a camera. Both pencils and cameras can be used to create copyrightable works or works that would be uncopyrightable (say your tax return, or security camera footage) The potential “author” for copyright purposes would be the person that gave the AI the prompt. Whether that prompt is creative enough to qualify for copyright protection is the root question here. My gut feeling is that in most cases it isn’t. Of course, another question is whether the work should be considered an unauthorized “derivative work” of the material used to train the AI.
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You’ve pretty much nailed it IMHO except for this one sentence:
A work can only be copyrighted if and to the extent that it was made by a person. But under copyright law, the “author” of a “work made for hire,” is usually the corporation that employed the creator. As much as the artist here was yanking people’s chains about AI, he may also have been trying to illustrate the strangeness of the “work made for hire,” concept.
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His claim may do that as a side effect but he was specifically trying to get an AI listed as author because he’s really into AI.
He’s a fairly serious scientist who has been working on AI for years and has a bit of a bee in his bonnet about the topic.
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In a sort of pragmatist sense, I appreciate that this may stymie the desires of certain companies to replace human creatives with AI systems at the cost of human creative workers.
But I also feel like the rhetoric of this ruling ultimately serves the wealthy creators of this technology by alleging that it is some kind of real non-human intelligence (like a monkey) rather than a very human-made system used by humans.
“the absence of any human involvement in the creation of the work” feels like a mischaracterization of what’s happening here. They’re not copyrighting a the sound of a tree falling in a forest of its own accord (though, ironically, I think you could copyright such a recording!). They’re copyrighting imagery created by a human (presumably) interacting with a tool a human (definitely) designed.
Maybe copyright still doesn’t apply, but we need a more coherent reason that is less steeped in AI Kool-Aid. Maybe tied to the fact that work produced by ML is inherently derivative in a way perhaps fundamentally different from human-made remix and appropriation.
Ew. If people want to build a machine for self-pleasure that’s one thing, but if someone believes that they’ve actually created artificial life and then proceed to have a romantic relationship with their own creation, that’s basically child abuse. Or at least attempted child abuse if they truly believe that the AI is sentient (which they aren’t, so far.)
Yah I don’t think Hollywood is under any delusions that they can eliminate labour. What they want is to control that labour and eliminate residuals. They want to replace big name stars and writers with a room full of anonymous copy editors and CGI artists. AI is looking like a plausible route to that goal if we don’t stop it.
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Not that kind of love thankfully. Storge not eros
Good. Most of the article was paywalled so I was going off of the headline and summary.
Oops, didn’t know that, sorry. Opened fine for me but who the hell knows how these things work these days…
[mumbles to himself about how nothing works properly anymore]
The WGA/SAG strikes happening at this moment are quite revealing, as the AMPTP is making all that pretty explicitly clear in their responses to demands. It’s really pulling the mask off…
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If only. If they were all working in a room together that would at least provide the opportunity for them to organize and demand better working conditions. It’s more like they want to replace these folks with anonymous gig workers who are working remotely for poverty wages.
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