Judge says art created by AI cannot be copyrighted

Artificial intelligence, or AI, has been around in some form for many years, but the conversation was supercharged earlier this year when various tools came on the market that allowed people to generate artwork and large amounts of text with nothing more than a simple prompt. I know I spent a weekend rocking back and forth in the fetal position wondering what the point of anything was, and who knows? Perhaps there will come a day when AI makes many jobs obsolete.

But the fervor over AI has gentled over the past few months, and now the courts are throwing more cold water on the concept. Responding to a petition from Imagination Engines executive Stephen Thaler, the U.S. District Court for the District of Columbia ruled last week that it is not possible to copyright artwork created purely by an AI.

That’s in line with what the U.S. Copyright Office said when, in 2018, Thaler tried to get a copyright for a piece of art called A Recent Entrance to Paradise, which he described as “autonomously created by a computer algorithm running on a machine.” The Copyright Office refused to grant Thaler a copyright. He sued, which brings us to the new opinion by U.S. District Judge Beryl Howell.

Copyright is for humans, not monkeys or robots

Essentially, Howell wrote that if a human didn’t make a thing, then copyright protection isn’t available for the thing. “Human authorship is a bedrock requirement.”

Believe it or not, there has been some precedent for this sort of thing. For instance, in one case, a federal appeals court said that a photo taken by a monkey can’t be granted a copyright protection, since animals don’t qualify. Neither do robots, apparently. Copyright law is for humans only.

Is this “speciesist?” I dunno, seems like a stupid question to me. Howell reasons that the whole point of copyright law is to encourage “human individuals to engage in” creation, so it doesn’t make sense to apply it to other lifeforms. Robots don’t need encouragement, anyway. “The act of human creation — and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts — was thus central to American copyright from its very inception.” Copyright law has adapted to the times as new technologies have come along, but human creativity is “at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.”

Could this ruling have an impact on the Hollywood writers strike?

This could be important. At the moment, Hollywood writers are on strike against studios, some of whom are very probably considering replacing human writers with AI. This ruling could give the studios pause, and maybe give the writers some leverage in negotiations.

And there are other legal challenges on the way. Some authors are suing AI companies, arguing that AI programs are violating their copyrights in their works by scraping them without permission. At the moment, these AI systems function by looking at huge amounts of work created by humans and then generating something based on it. Do AI companies need to pay the human authors for using their work like this? Perhaps they need to get permission? Or maybe it’s fine the way it is?

Also, we should note that while work created entirely by an AI, the Copyright Office has allowed for more wiggle room in work aided by an AI, so long as it’s been “selected or arranged” in a “sufficiently creative way that the resulting work constitutes an original work of authorship.” These and other questions will be further examined as more cases make their way through the courts. Although it might go faster if we got an AI judge in there, just saying.

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