AI Art Why It Can’t Be Copyrighted

AI Art Why It Can't Be Copyrighted

AI Artwork Denied Copyright: Is Creativity Limited to Humans?

AI Art

In a surprising turn of events, the US Copyright Office has ruled that an award-winning piece of AI art, Théâtre D’opéra Spatial, cannot be copyrighted. Created by artist Matthew Allen, this artwork took first place at last year’s Colorado State Fair but has since become embroiled in a landmark copyright dispute. Allen is now planning to file a lawsuit against the US federal government, determined to fight for recognition of his AI-generated masterpiece.

The crux of the problem lies in the fact that Allen utilized the generative AI program Midjourney to create his artwork. However, copyright protections are not extended to artificial intelligence, regardless of the astonishing nature of the end result. According to Rebecca Tushnet, a leading copyright scholar from Harvard Law School, the decision is in line with previous judgments that require human authors. This mirrors the 2018 case where a photograph taken by a macaque was declared public domain since animals, like machines, cannot hold copyright.

Allen went to great lengths to register his work, providing a detailed explanation to the Copyright Office of his involvement in the creative process. He meticulously described how he manipulated the output of Midjourney, as well as the alterations he made using editing tools like Adobe Photoshop and Gigapixel AI. Allen specified that creating the painting involved at least 624 text prompts and revisions. The Copyright Office acknowledged his original contributions through editing but ultimately maintained that AI-generated parts could not be copyrighted. This means Allen could only copyright certain portions of the artwork, but not the entire piece.

In July, Allen made another appeal, arguing that the Copyright Office had overlooked the “essential element of human creativity” required to utilize Midjourney. He tried to invoke the fair use doctrine, claiming that his work should be registered due to its transformative use of copyrighted material. However, the Copyright Office dismissed his argument, unequivocally declaring that the AI-generated work cannot be registered.

Allen’s dashed efforts shed light on a growing legal consensus. Recently, a US federal judge dismissed a case brought by AI researcher Stephen Thalus, who staunchly believes that the AI system he invented deserves copyright protection. In her decision, Judge Beryl Howell stated that there is no previous legal precedent recognizing copyright originating from nonhuman entities. Thalus is currently appealing the verdict, and his attorney, Ryan Abbot, sees the Copyright Office’s decision on Allen as a potential deterrent to the AI-assisted art world.

The ruling highlights the uncertainty surrounding copyright protection for AI-assisted artwork. Artists may need to invest even more effort into works created with AI tools. According to Tushnet, if human tweaks have a substantial aesthetic impact, they might provide enough human authorship to obtain copyright for the entire artwork. However, the exact threshold for human authorship remains ambiguous. Allen’s case demonstrates that 624 adjustments were not sufficient, leaving artists questioning where the elusive line lies.

Matthew Sag, a law and artificial intelligence professor at Emory University, believes that artists who give detailed instructions to AI should, in certain cases, receive copyright protection. He argues that the Copyright Office should be more open to considering these types of applications in the future. However, he concedes that establishing clear guidelines for such cases is challenging. The applicants may need to specify precisely how they used AI tools to bring their original artistic vision to life.

The implications of this ruling extend far beyond the art realm, with creative fields embracing AI tools facing similar challenges. In Hollywood, writers and actors are already petitioning for labor safeguards against AI. Yet, it remains to be seen whether this decision will discourage companies seeking to lower labor costs by utilizing AI. According to Tushnet, they are likely to involve humans just enough to meet the threshold of copyrightability.

Meanwhile, Allen is not ready to back down. He plans to file a federal lawsuit within the next six months. Confident of eventual victory, he criticizes the Copyright Office for shying away from making the decision and leaving it to the courts. He sees their cautious approach as an impediment to innovation and creativity, contrary to their mandate of protecting these very ideals.

The controversy surrounding Allen’s artwork raises critical questions about the boundaries of creativity in the age of AI. As AI tools continue to shape various industries, defining the line between human and AI authorship will be crucial. While artists navigate this uncharted territory, one thing is certain: the debate over AI and copyright is far from over.