Jun 28 | 2019

Copyright Authorship in the Artificial Intelligence Age

In late 2018, Portrait of Edmond Belamy (2018) sold at Christie’s for $432,500. The sale was notable not only because the final price was a “whopping 4,320 percent increase from the presale estimate of $10,000,” but because the painting was created using artificial intelligence (AI). The AI developed and used by Obvious, a Paris-based art collective, is a Generative Adversarial Network (GAN) which they describe as being made of two parts: Generator and a Discriminator: “We fed the system with a data set of 15,000 portraits painted between the 14th century to the 20th. The Generator makes a new image based on the set, then the Discriminator tries to spot the difference between a human-made image and one created by the Generator. The aim is to fool the Discriminator into thinking that the new images are real-life portraits. Then we have a result.”

That the aim is reached by the GAN system working within itself gives rise to a peculiar question: who is the “creator” of the painting for purposes of copyright ownership? Is it Obvious, the humans who “fed” and developed the machine learning system, or is the GAN system uniquely responsible for the painting? Who is considered the author of the work and who owns the copyright? Under current U.S. law, only humans can own a copyright, but the growth of AI presents challenges and an opportunity for the U.S. to update the Copyright Act as AI develops.

Monkeying Around: A Selfie and Current Copyright Standards

The current standard for determining who can be a copyright owner is set forth in a case involving a rather (in)famous photograph of a monkey, taken by a monkey. In Naruto v. Slater, Naruto, a six-year-old crested macaque (a monkey), took photographs of himself using British wildlife photographer David Slater’s camera, which Slater intentionally left unattended.  Slater made, distributed, and sold copies of the photographs.

People for Ethical Treatment of Animals (PETA) and Ante Engelhardt filed suit as Next Friends of Naruto alleging that Slater infringed the monkey’s copyright in the photos. Slater argued that the Copyright Act does not confer standing upon animals and the district court granted his Motion to Dismiss.  The Ninth Circuit affirmed.

In granting the motion to dismiss, the district court had to consider whether animals could be considered authors for purpose of copyright ownership and hence, standing to sue.  The court pointed to the Copyright Act which references “persons” or “human beings” for purposes of authorship, and it looked to precedent in Cmty. for Creative Non-Violence v. Reid, where the Supreme Court explained that “[a]s a general rule, the author is the party who actually creates the work, that is the person who translates an idea in a fixed, tangible expression entitled to copyright protection;” and in Urantia Foundation v. Maaherra, where the Ninth Circuit stated that “a work is copyrightable if copyrightability is claimed by the first human beings who compiled, selected, coordinated, and arranged [the work].” Finally, the district court pointed to the Human Authorship Requirement of Section 306 of the Copyright Office’s Compendium of U.S. Copyright Office Practices and its statement that the Copyright Office “will register an original work of authorship, provided that the work was created by a human being.”

In affirming the district court, the Ninth Circuit further explained that other provisions of the Act refer to “grandchildren,” “widows,” and “widowers” in terms of inheritance, and the inclusion of these terms “all imply humanity and necessarily exclude animals that do not marry and do not have heirs entitled to property by law.” As such, Naruto’s photographs, taken by a monkey, did not qualify for copyright protection and neither a monkey, nor its friends could sue on its behalf.

Works Made for Hire:  Copyright Owned by Non-Human Entities

Despite the poor fate of Naruto’s monkey, there is a long history of recognizing and upholding copyright protections for non-human entities. Under the Works-Made-for-Hire doctrine, for example, corporations are recognized as the owner of a copyright in works created by their employees or works commissioned in writing by independent contractors.

Moreover, other countries recognize copyright rights in non-human creators.  Under the United Kingdom’s Copyright, Designs and Patents Act, for example, the author of “literary, dramatic, musical or artistic work” that is “computer-generated” is taken to be the “person by whom the arrangements necessary for the creation of the work are undertaken.” Under such a framework in the U.S., works created by AI and other creative machines could qualify for copyright protection and would be considered the property of the programmers or creators behind the AI.

Allowing this evolution of the law in the U.S. would be in keeping with how U.S. copyright law has historically accommodated the advancement of technology.  In but one illustration of that evolution, human photographers’ works are still protected, even though we’ve moved from the use of dry plates, to film and mechanical SLR cameras where the photographer had to manipulate F-stops, to digital cameras that automatically adjust the exposure for the photographer.  Similarly, in AI, a human still imagines the output and expression and tells the machine what to do – even if the machine has a significant role in the actual output.  In order to accommodate this new technology, copyright laws need to be changed accordingly so that works created by AI will be protectable.  The result of this change will encourage innovation and invention as programmers and creators of AI would be assured that the resulting work from their creative machines would be protectable.

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