By Ian Cullen
Have you been trying to create the perfect painting with AI? Maybe you have created a program just for this purpose, and it has churned out the perfect image. When it comes to obtaining the exclusive rights to this image, you may be out of luck, just like Stephen Thaler and his “Creativity Machine”[1]. Thaler’s Creativity Machine created such an image, and in 2019, he tied to copyright this image[2] Much to Mr. Thaler’s chagrin, the Copyright Office denied his request to copyright his AI generated image “A Recent Pathway to Heaven”[3], because it lacked human authorship. Thaler appeals to the DC District court, and the Copyright Office’s motion to dismiss is upheld[4].
Where does this leave you, the reader, and all the other creative minds using AI to assist their creativity? Unfortunately, for now, you’ll have to wait to register that project with the US Copyright Office.
The question of AI creations is still a hotbed for disagreement and will lead to more discussion and evolution of Copyright law [5]. The ownership or authorship of algorithmically generated works is a difficult issue that could be handled several different ways[6] . The author could be the programmer, or it could be the user of the program, or even both being joint owners[7].
Several theories of copyright law describe the relationship of copyright law and social welfare, but all include a human element, and even depend on the author being human[8]. Thaler, however, provides the best example of how not all copyright must be related to an individual or a human author, via “work for hire”[9]. Under the concept of “work for hire” copyright, a corporate entity is entitled to the works created by its employee[10]. This may be an avenue that AI artists everywhere will explore on their path to copyright protection for AI works, because it already does not conform to the traditional human aspects of copyright law[11]
Another avenue through which AI artists will pursue their authorship rights will be through sui generis protections[12]. “In IP law, a sui generis system protects rights that fall outside of conventional IP rights in copyrighted works, patents, trademarks, and trade secrets”[13]. Already sui generis rights have been used to protect databases in the EU[14], which could be a huge win for AI artists because in order to obtain copyright protection for a database there must have been “qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents”[15].
While there is an uphill battle for AI artists, like Stephen Thaler, there is change coming in copyright law that could allow artists like Thaler to obtain protection over their works.
[1] See generally Thaler v. Perlmutter, 22-1564 (BAH), 2023 U.S. Dist. LEXIS 145823 (Aug. 18, 2023).
[2] Id. at *2
[3] Id.
[4] See id. at *21
[5] Margot E. Kaminski, Authorship, Disrupted: AI Authors in Copyright and First Amendment Law
51 U.C. Davis L. Rev. 589, 597 (2017).
[6] See id.
[7] See id.
[8] See id.
[9] See generally Thaler, 2023 U.S. Dist. LEXIS 145823.
[10] Kaminski, supra note 5, at 602.
[11] Id. at 602.
[12] See Haochen Sun, Redesigning Copyright Protection in the Era of Artificial Intelligence, 107 Iowa L. Rev. 1213, 1236.
[13] Id.
[14] See id.
[15] Id. at 1237.