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At what point, if any, can Artificial Intelligence be considered “human?” Who is responsible for the art that’s created by technology? Who owns art predominately created by computers? The US Copyright Office tackled these questions in its latest ruling regarding artificial intelligence that will have implications on art and NFTs going forward.
In short, the Copyright Office ruled that it will not offer protection if it determines that a human being did not create a piece of artwork. However, a deeper look into the rationale behind the copyright application itself and its subsequent denials reveals a deeper, more complex, web of questions that the Copyright Office will have to face in the coming years.
The US Copyright Office’s AI Ruling
In 2019, Dr. Steven Thaler, founder and board member of Imagination Engines, Inc., attempted to copyright a two-dimensional piece of artwork titled “A Recent Entrance to Paradise.” According to Thaler, this piece is a “simulated near-death experience” in which an algorithm reprocesses pictures to create hallucinatory images and a fictional narrative about the afterlife. Critically, the computer is meant to complete this work of art with minimal human intervention.
In Thaler’s initial copyright application, the author of the artwork was identified as the “Creativity Machine,” with Thaler listed as the claimant alongside a transfer statement: “ownership of the machine.” In his application to the Copyright Office, Thaler left a note stating that the artwork “was autonomously created by a computer algorithm running on a machine,” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.” In an August 12, 2019 letter, a Copyright Office registration specialist refused to register the claim, finding that it “lacks the human authorship necessary to support a claim.”
Thaler requested that the Copyright Office reconsider its initial refusal to register the artwork, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.” The Copyright Office re-evaluated the claims and again concluded that the artwork “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” The Copyright Office even went a step further and stated that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.”
Thaler then submitted a second request for reconsideration, arguing again that the Copyright Office’s “human authorship” requirement is unconstitutional and unsupported by case law. Specifically, in this second request, Thaler argued that the Copyright Office “should” register copyrights in machine-generated works because doing so would “further the underlying goals of copyright law, including the constitutional rationale for copyright protection.” In response to the Copyright Office’s citation of case law addressing human authorship, Thaler asserted that “there is no binding authority that prohibits copyright for [computer-generated
works],” that copyright law already allows non-human entities to be authors under the work made for hire doctrine, and, ultimately, that the Copyright Office “is currently relying upon non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.”
In response to Thaler’s second request, the Copyright Office, once again, ruled against Thaler. A three-person review board determined, as they had before, that Thaler’s AI-created image did not include the element of “human authorship” necessary for copyright protection.
So, what does this mean for computer-created works going forward? To illustrate this forward-looking question, let’s delve into the past and take a look at a piece of cinematic art, 2014’s Ex Machina.
In the 2014 movie, Ex Machina, a computer coder named Caleb (Domhnall Gleeson) is invited by Nathan (Oscar Isaac), the CEO inventor of a huge tech company, to be the “human component” in a Turing Test that will determine the capabilities of a robot named Ava (Alicia Vikander). In this movie, Nathan creates the code to build Ava, and Caleb participates in the test of Ava’s capabilities. In one scene, however, Ava creates a drawing for Caleb. At this point in the movie, it’s clear that Nathan created Ava, and it’s equally clear that Caleb is a human component in bringing Ava to her final form. Amidst all this clarity, however, is the unaddressed and unanswered question: Who owns the artwork created by Ava?
Is it Nathan, since he created the software, the code, and physically built Ava? Is it Caleb, since the artwork was created at his direction and for his benefit? Or is it Ava, since she literally drew this piece of art? If we tackle this question as the Copyright Office did, Ava would not be eligible for ownership of this art based on the fact that, despite exhibiting “human” traits, she is, in essence, a computer. As the movie suggests, we need to evaluate how we understand our future relationship with artificial intelligence, and a part of that consideration is how this Copyright Office ruling will impact the future of NFTs.
Like the artwork created by the “Creativity Machine,” many NFT art projects are generative. Generative art, often referred to as “Coding Art,” is a process where a person provides base layers of art and/or various codes and algorithms that are then processed by a computer that outputs artwork. The artwork used will generally be owned by the artist. The code used will generally be owned by the software creator. But the question remains: who owns the output of the computer?
While there has been recent case law on the matter (see Rearden LLC v. Walt Disney Co., 293 F. Supp. 3d 963 (ND Cal. 2018) (acknowledging that some authorities “suggest that the copyright protection afforded a computer program may extend to the program’s output if the program ‘does the lion’s share of the work’”)), it’s safe to say there are still complex and unresolved issues in copyright law. Perhaps the Copyright Office and other governing agencies will provide further guidance on these ever-changing questions.
For the complete US Copyright Office Review Board ruling, see here.
For an overview of what works are copyrightable, see here.
This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.
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