AI and Copyright: A New Kind of Copyright Troll? The Rise of AI in Creative Works

October 4, 2023

Artificial Intelligence and the Creative Process

Computers, robots, and machines have played a role in the creative process for generations, producing crude images or outputs that artists use, tweak, or start from to create original works of art. David Bowie famously used a machine called the Verbasizer to generate random words and spark ideas for song lyrics on his 1995 album Outside.

More recently, the rise of artificial intelligence (AI) has picked up steam, requiring us to rethink the role of AI in the creative process. Machines that once produced crude images have now been replaced with autonomous computer programs that are capable of learning without being continuously re-programmed or updated by humans.

Implications for Copyright Law

Creating AI-generated art could have important implications for copyright law. Traditionally, copyright ownership in computer-generated works was not in question because the program was only a tool that supported the creative process, such as using Microsoft Word to write a novel. But with AI programs, the program is no longer only a tool—it now makes many of the decisions involved in the creative process without human intervention to create AI-generated works of art.

There are three ways in which U.S. copyright law could conceivably deal with creative works that are made with little to no human involvement. Regulators can deny copyright protection outright for such works. They can grant copyright protection and attribute authorship to the programmer who created the generative AI program. Or they can grant copyright protection and attribute authorship to the end user who input text, ideas, music, or images into the AI program (or perhaps some combination of the above).

Commercial Implications for Artists, Programmers and End Users

The decision regulators make will have profound commercial implications for artists, programmers, and end users. AI is already being used to produce creative works in many fields, including visual art, written works, musical compositions, and even video games.

If regulators decide AI-generated works are not eligible for copyright protection, then companies and programmers that have invested in the technology and that want to profit from those works will be out of luck. Conversely, if regulators decide AI-generated works are eligible for copyright protection, those AI companies will profit considerably—and perhaps even at the individual artists’ expense.

Then there is the end user who input text, images, sounds or other data points into the AI program to generate a creative work. Should the end user be entitled to copyright protection to the exclusion of both the programmer and the artist(s) upon which the new, AI-generated work might be based?

‘Creative Regulators’ and Artists Fight Back

The U.S. Copyright Office and the World Intellectual Property Organization (WIPO) are taking a hard look at the role of AI in copyright law. The U.S. Copyright Office made its position clear: AI-generated creative works are not protectible under current U.S. copyright law because they “are not the product of human authorship.” On Feb. 21, 2023, the U.S. Copyright Office partially cancelled a copyright registration for the comic book “Zarya of the Dawn.” The author, Kris Kashtanova, created the images for the comic book with the help of an AI program called Midjourney. Although Kashtanova was allowed to maintain her copyright to the comic book’s “text, as well as the selection, coordination, and arrangement of the comic book’s written and visual elements,” she could not maintain a copyright in the individual images because they were not the product of human authorship. In so holding, the Copyright Office made clear that human involvement is critical for copyright protection.

Artists are taking notes and pushing back against what they see as unfair copying of their creative works. Recently, a group of artists sued three AI companies—Stability AI, Midjourney, and Deviant Art—claiming that the companies’ AI programs violate U.S. copyright law by scraping their creative works from the internet without their consent, and using those works to create similar, AI-generated art.

Programmers and End Users’ Defenses

Programmers and end users are not without any defenses. Many argue that use of AI programs to generate creative works should be considered fair use. The defense of fair use is a hallmark of copyright law. It is designed to address the fact that unauthorized use of another’s work is sometimes not actionable because it is deemed “fair.” In doing so, it alleviates a rigid approach to copyright law that might actually stifle the very creativity those laws are designed to foster. In other words, it permits some unauthorized use so that others can use and build upon prior works in a manner that does not unfairly deprive prior copyright owners of the right to control and benefit from those works.

For now, some believe that scraping prior art for AI training purposes might be considered fair use, whereas the actual generation of AI art based on artists’ prior works may not be fair. Time will tell.

Future Outlook

AI’s role in the creation of art, music, and other artistic works poses complex questions for everyone—from artists and end users, to tech companies, programmers, regulators and lawmakers. Everyone will have different, and at times competing, interests and arguments to either rely upon, defend or attack the use of AI programs to generate creative works. The simple truth is that no one knows what’s next for AI and copyright. But we are excited for the ride.

The article in its original form can be found in The Legal Intelligencer on March 22, 2023 here.

 

Jillian Taylor (LAW ’16) is an associate at Blank Rome who focuses her practice on intellectual property matters.