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Can AI works get copyright protection? (Redux)
The Copyright Office seems to have misread the law in a disturbing way.
This is “Théâtre D’opéra Spatial.” It is a work that won its author, Matthew Allen, first prize at the Colorado State Fair. However, it does not currently have copyright protection because Allen famously used AI to help generate the image.
The US Copyright Review Board denied Allen’s application for copyright protection because it “contains more than a de minimis amount of content generated by artificial intelligence.” Wow. This is quite something. Allen used a tool called Mid-journey to generate the image. Anyone who has used that tool knows that it doesn’t create an image out of thin air. You have to prompt it, adjust output and then finally decide you are happy with what has been produced.
Regular readers will recall that we have been down this road already with a judgment that ruled a work inadmissible for copyright protection because the claimant claimed that AI was the author of the work and authors have to be human. It was that claim the judge rejected and, in fact, noted that:
In other words, the judge didn’t buy there was no human authorship present here.
In the Allen case, he most certainly claimed authorship and did not mention the use of AI tools in his application. Because of his prize publicity, the Copyright Office found out and decided to investigate.
The copyright office wanted Allen to tell them which parts were generated by AI (and also Photoshop adjustments, for that matter) so they could exclude them from the copyright claim. Allen argued convincingly, in my opinion, that he couldn’t really separate out the parts. Indeed, even if he had the list of prompts, it wouldn’t really allow some sort of AI-minus image to exist. The Copyright Review Board tried to give an example of this.
The whole is surely more than the sum of the parts. In any case, that original image was the result of a prompt, and Allen chose to work on that rather than something else. Indeed, he experimented with 600 prompts before deciding this was something. This is much the same way a photographer might experiment with many pictures before deciding to work on improving one.
One way to thread this needle
One way to thread this needle is to say that Allen doesn’t have ownership over the initial prompt or set of prompts, but the final image is his. Perhaps this is what the Copyright Office wants the claim to look like. The Board says the Mid-journey image is not copyrightable because it is generated by a non-human, but it does not say the improvements that led to the Work were.
I do not think this is right because I think that coming up with prompts that push the AI to generate something is a creative and artistic act. Put simply, I do not believe that with the current technology, a machine can be an author in any way, shape or form and that if a human had a hand in the whole thing, then the authorship lies with the human.
Can of worms
Trying to draw some line between AI and humans with the current technology opens up a massive can of worms. There is literally no piece of digital work these days that does not have some AI element to it, and some of these mix and blur the lines in terms of what is creative and what is not. Here are some examples:
A music artist uses AI to denoise a track or to add an instrument or beat to a track or to just get a composition started.
A photographer uses Photoshop or takes pictures with an iPhone that already uses AI to focus the image and to sort a burst of images into one that is appropriate.
A writer uses AI to prompt for some dialogue when stuck at some point or to suggest a frame for writing a story. For example, this.
Put simply, AI is a tool like a camera or a typewriter or, for that matter, an autotune. Even if the work would have zero value sans the use of that tool, that does not mean the work was caused by the tool. The fact that it requires a human — the claimed human as the author of the work — to cause the entire thing to be generated is surely the fundamental component of authorship. Any blurring of the lines will lead to chaos and requires a view of the technology’s independence that makes no sense.