In February 2022, the US Copyright Office rejected a request to grant an AI algorithm — named the “Creativity Machine” — copyright. The request submitted by the AI’s creator, Dr. Stephen Thaler, was reviewed by a three-person board. Titled “A Recent Entrance to Paradise,” the artwork portrayed train tracks leading through a tunnel surrounded by greenery and vibrant 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 fulfill the “human authorship” requirement that goes into copyrighting something.
“While the Board is not aware of a United States court that has considered whether artificial intelligence can be the author for copyright purposes, the courts have been consistent in finding that non-human expression is ineligible for copyright protection,” the board said in the copyright decision.
Founder of Imagination Engines
(Courtesy of Imagination Engines, Inc.)
Thaler shares that the law is “biased towards human beings” in this case.
While the request for copyright pushed for credit to be given to the Creativity Machine, the case opened up questions about the true author of AI-generated art.
Attorney Ryan Abbott, a partner at Brown, Neri, Smith & Khan LLP, helped Thaler as part of an academic project at the University of Surrey to “challenge some of the established dogma about the role of AI in innovation.” Abbott explains that copyrighting AI-generated art is difficult because of the human authorship requirement, which he finds isn’t “grounded in statute or relevant case law.” There is an assumption that only humans can be creative. “From a policy perspective, the law should be ensuring that work done by a machine is not legally treated differently than work done by a person,” he says. “This will encourage people to make, use and build machines that generate socially valuable innovation and creative works.”
From a legal standpoint, AI-generated work sits on a spectrum where human involvement sits at one extreme and AI autonomy sits on the other.
“It depends on whether the person has done something that would traditionally qualify them to be an author or are willing to look to some nontraditional criteria for authorship,” Abbott says.
“This issue of owning an AI-generated work is something that has been discussed for decades, but not in a way that had much commercial importance.”
In Epstein’s article, he uses the example of the painting “Edmond De Belamy,” a work generated by a machine learning algorithm and sold at Christie’s art auction for $432,500 in October 2018. He explains that the work would not have been made without the humans behind the code. As artwork generated by AI gains commercial interest, more emphasis is put 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 credit is given to AI-generated art, especially for those who feel like the programs could pull from their own online work without citing or compensating them. “A lot of professionals are worried it will take away their jobs,” illustrator Gurney says. “That’s already starting to happen. The artists it threatens most are editorial illustrators and concept artists.”
It’s common for AI to generate images in a certain style of an artist. If an artist is looking for something in the vein of Vincent van Gogh, for instance, the program will pull from his pieces to create something new in a similar style. This is where it can also get muddy. “It’s hard to prove that a given copyrighted work or works were infringed, even if an artist’s name is used in the prompt,” Gurney says. “Which images were used in the input?” We don’t know.”
“It’s hard to prove that a given copyrighted work or works were infringed, even if an artist’s name is used in the prompt,” he says. “Which images were used in the input?” We don’t know.”
Legally, rights holders are concerned with providing permission or receiving compensation for having their work incorporated into another piece. Abbott says these concerns, while valid, haven’t quite caught up with the technology. “The right holders didn’t have an expectation when they were making the work that the value was going to come from training machine learning algorithms,” he says.
A 2018 study by The Pfeiffer Report sought to find out how artists were responding to advances in AI technology. The report found that after surveying more than 110 creative professionals about their attitudes to AI, 63% of respondents said they are not afraid AI will threaten their jobs. The remaining 37% were either a little or extremely scared about what it might mean for their livelihoods. “AI will have an impact, but only on productivity,” Sherri Morris, chief of marketing, creative and brand strategy at Blackhawk Marketing, said in the report. “The creative vision will have to be there first.”
Illustrator and artist Jonas Jödicke worked with WOMBO Dream, another AI art-generating tool, before receiving access to DALL-E 2 in mid-July. From his experience as an illustrator using AI, he says that it could be a “big problem” if programs source his own image and make something similar in his style. He explains that programs like DALL-E pull from so many sources all over the internet that it can “create something by itself,” completely different from other work.
(Courtesy of Jonas Jödicke)
Jödicke acknowledges the concerns with art theft, especially as someone who has had his work stolen and used to sell products on the likes of Amazon and Alibaba. “If you upload your art to the internet, you can be certain that it’s going to be stolen at some point, especially when you have a bigger reach on social media,” he says.
Regardless, Jödicke sees AI as a new tool for artists to use. He compares it to the regressive attitudes some people have had towards digital artists who use programs like Adobe Creative Suite and Pro Tools. Sometimes artists who use these programs are accused of not being “real artists” although their work is unique and full of creativity. “You still need your artistic abilities and know-how to really polish these results and make them presentable and beautifully rendered,” he says.