US judge: Art created solely by artificial intelligence cannot be copyrighted
"US copyright law protects only works of human creation," judge writes.
Art generated entirely by artificial intelligence cannot be copyrighted because "human authorship is an essential part of a valid copyright claim," a federal judge ruled on Friday.
The US Copyright Office previously rejected plaintiff Stephen Thaler's application for a copyright because the work lacked human authorship, and he challenged the decision in US District Court for the District of Columbia. Thaler and the Copyright Office both moved for summary judgment in motions that "present the sole issue of whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright," Judge Beryl Howell's memorandum opinion issued Friday noted.
Howell denied Thaler's motion for summary judgment, granted the Copyright Office's motion, and ordered that the case be closed.
Thaler sought a copyright for an image titled, "A Recent Entrance to Paradise," which was produced by a computer program that he developed, the ruling said. In his application for a copyright, he identified the author as the Creativity Machine, the name of his software.
Image “created by a computer algorithm”
Thaler's application "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,'" Howell wrote. "The Copyright Office denied the application on the basis that the work 'lack[ed] the human authorship necessary to support a copyright claim,' noting that copyright law only extends to works created by human beings."
The denial was in August 2019. Howell petitioned the Copyright Office again, saying 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." The Copyright Office again refused to register the work in 2020 and 2022.
"Because copyright law is limited to 'original intellectual conceptions of the author,' the Office will refuse to register a claim if it determines that a human being did not create the work," the second refusal letter in March 2020 said.
Thaler last year lost a different case over whether AI software can be the registered inventor on a patent. US patent law requires inventors to be human, a federal appeals court ruled in the August 2022 ruling against Thaler.
Plaintiff “put cart before the horse”
In the Friday ruling on copyright of an AI-generated image, Judge Howell wrote that Thaler attempted "to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer's work would transfer to him, as the computer's owner; for example, by operation of common law property principles or the work-for-hire doctrine." But these arguments "put the cart before the horse" because they only address "to whom a valid copyright should have been registered," not whether a copyright can be granted for a work generated without human involvement, Howell wrote.
"United States copyright law protects only works of human creation," Howell wrote.
Thaler "correctly observes" that "copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper," the ruling said. The US Copyright Act of 1976 says that copyright attaches to "original works of authorship fixed in any tangible medium of expression, now known or later developed... either directly or with the aid of a machine or device."
"Underlying that adaptability, however, has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media," Howell wrote.
Thaler pointed out that the Copyright Act does not define the word "author." But Howell wrote that the law's "'authorship' requirement as presumptively being human rests on centuries of settled understanding."
Human authorship a “bedrock requirement”
The US Constitution conceived of copyrights and patents "as forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent... Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them."
Copyright has never stretched far enough "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," Howell wrote.
The Copyright Act of 1909 "explicitly provided that only a 'person' could 'secure copyright for his work' under the Act," Howell wrote. That understanding carried forward into the 1976 update, the ruling said:
Copyright under the 1909 Act was thus unambiguously limited to the works of human creators. There is absolutely no indication that Congress intended to effect any change to this longstanding requirement with the modern incarnation of the copyright law. To the contrary, the relevant congressional report indicates that in enacting the 1976 Act, Congress intended to incorporate the "original work of authorship" standard "without change" from the previous 1909 Act.
The human authorship requirement has also been consistently recognized by the Supreme Court when called upon to interpret the copyright law. As already noted, in Sarony, the Court's recognition of the copyrightability of a photograph rested on the fact that the human creator, not the camera, conceived of and designed the image and then used the camera to capture the image.
Howell also pointed to a 9th Circuit appeals court ruling in 2018 that a monkey who took a selfie "could not sue under the Copyright Act for the alleged infringement of photographs this monkey had taken of himself, for 'all animals, since they are not human' lacked statutory standing under the Act." Thaler wasn't able to point to any case "in which a court has recognized copyright in a work originating with a non-human," Howell wrote.
Future cases may not be as simple
Future cases are likely to present more challenging legal questions "regarding how much human input is necessary to qualify the user of an AI system as an 'author' of a generated work" and "how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works," Howell wrote. But Thaler's case "is not nearly so complex."
In his lawsuit, Thaler "assert[ed] new facts that he 'provided instructions and directed his AI to create the Work,' that 'the AI is entirely controlled by [him],' and that 'the AI only operates at [his] direction,'" implying "that he played a controlling role in generating the work," Howell wrote. But when he applied for the copyright, Thaler "informed the Register that the work was '[c]reated autonomously by machine,' and that his claim to the copyright was only based on the fact of his '[o]wnership of the machine.'" It is now too late to "update and modify the facts for judicial review," the judge wrote.
"In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No," Howell wrote. "Given that the work at issue did not give rise to a valid copyright upon its creation, plaintiff's myriad theories for how ownership of such a copyright could have passed to him need not be further addressed."
In a separate case last year, artist Kris Kashtanova received US copyright registration on a graphic novel that contained AI-generated artwork created by latent diffusion AI. But in February 2023, the Copyright Office said it would cancel the registration and issue a new one covering only the "text as well as the selection, coordination, and arrangement of the Work's written and visual elements."
The images themselves "that were generated by the Midjourney technology are not the product of human authorship," the decision said. Kashtanova's original application for a copyright "was incorrect, or at a minimum, substantively incomplete" because it did not disclose the use of artificial intelligence, the decision said.
Giving prompts to AI not enough for human authorship
In March 2023, the Copyright Office issued guidance to clarify when AI-generated material can be copyrighted. The guidance said:
If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ''traditional elements of authorship'' are determined and executed by the technology—not the human user.
Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.
Jon has been a reporter for Ars Technica since 2011 and covers a wide array of telecom and tech policy topics. Jon graduated from Boston University with a degree in journalism and has been a full-time journalist for over 20 years.
No comments:
Post a Comment