The US Copyright Office Says an AI Can't Copyright Its Art (theverge.com) 81
The US Copyright Office has rejected a request to let an AI copyright a work of art. From a report: Last week, a three-person board reviewed a 2019 ruling against Steven Thaler, who tried to copyright a picture on behalf of an algorithm he dubbed Creativity Machine. The board found that Thaler's AI-created image didn't include an element of "human authorship" -- a necessary standard, it said, for protection. Creativity Machine's work is named "A Recent Entrance to Paradise." It's part of a series Thaler has described as a "simulated near-death experience" in which an algorithm reprocesses pictures to create hallucinatory images and a fictional narrative about the afterlife. Crucially, the AI is supposed to do this with extremely minimal human intervention, which has proven a dealbreaker for the Copyright Office. The board's decision calls "the nexus between the human mind and creative expression" a vital element of copyright. As it notes, copyright law doesn't directly outline rules for non-humans, but courts have taken a dim view of claims that animals or divine beings can take advantage of copyright protections.
So is computer generated code copyrightable? (Score:2)
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If the human owns the AI that created the code, would not the human not just copyright it? The AI cannot have ownership because it is not a person. My gerbil can't copyright his creations either and he is actually alive (last time I checked) and probably smarter than most AIs.
If you read the summary, it says the image didn't have an "element of human authorship".
Re:So is computer generated code copyrightable? (Score:5, Interesting)
Is defining what to do enough human authorship? If AI can create code that accomplishes a task a human outlined but the underlying code is generated by teh AI, not a human, is it copyrightable?
If a compiler gathers human intent from software code and creates an application which can run on computer hardware, did the human author it? If so, at what point does a human stop authoring code? Does the AI have to identify a market need, do its own product management, and write its own requirements before it no longer has a human author?
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A compiler is deterministic. I will (should) create the same output giving the same input.
Also, the developer copyrights both the source code and the resulting compiled/distribution code.
Strange how the copyright office recognizes companies/corporations as 'persons' but not an AI. Agreed, grogger's gerbil is smarter than most AIs. And most AIs are smarter than most companies. Ergo, you want a smart company, have it run by a gerbil.
Re:So is computer generated code copyrightable? (Score:5, Insightful)
...Strange how the copyright office recognizes companies/corporations as 'persons'
Although you hear that statement a lot, this is not entirely settled law; the supreme court has danced around the issue without ever explicitly stated that corporations are persons. A corporation is recognized as a person for the purposes of being able to enter into contracts.
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As well as hold various licenses, pay some kinds of taxes, etc.
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That's a bit different; most licenses and taxes for businesses are designed specifically for businesses and rarely apply to individual people, whereas contract law was designed for humans and just expanded to include corporations.
I once heard someone say "I won't believe a corporation is a person until Texas puts one on death row."
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Citizens [Re:So is computer generated code...] (Score:4, Informative)
A corporation is recognized as a person in regard to the right to speech
Close. What the supreme court actually said in the Citizens United ruling is that individuals have a constitutionally guaranteed right to free speech, and that this right does not go away when the individuals associate into groups (which is also a constitutionally guaranteed).
but technically one could say the right is passing through from the shareholders.
Exactly. Technically it's the individuals who have the right to free speech.
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That is irrelevant.
I think that is only because the resulting compiled/distribution is a derivative work of the source code,. I should think that it is also a derivative work of the compiler itself in the same sense, however; typically the compiler creators expressly agree to surrender copyright ownership entirely to the c
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In the case of a compiler I could see where the issue becomes more fuzzy, the output is essentially recombination of logic within the compiler program. Like a quilt making system where the operator makes a quilt but that quilt out
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Unlinked binary files might not be considered derivative works, but executables definitely are. And to that extent the compiler author would have partial ownership of the binaries that their compiler produced unless they surrendered them.
This is how, for example, developers of certain software development environments can legally claim royalties on sales of code produced by their tools, because the binaries are partially copyrighted by them and so they can dictate the terms of copying it.
Re: So is computer generated code copyrightable? (Score:1)
Do Lego own copyright on everything that users create with their bricks?
That seems like a similar scenario, and my gut instinctively says that they don't.
But then, I am not a lawyer.
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Lego is a trademark, not copyright. Lego cannot generally claim any ownership over users creating things with Lego because their usage of it is already typically covered under nominative use of a trademark.
Computer code, however, is protected by copyright, and different IP rules apply. For what it's worth, trademark law doesn't even contain any notion of a "derivative work". Trademarks can often be arbitrarily similar without infringing on eachother. Exceptions can exist to this, but they need to sh
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That's a good point - patent vs. copyright. Not so similar a scenario, after all.
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I think you'll find the distinction isn't that they have a claim on the binary as a derivative work but that they claim ownership of dependent libraries and the users of their development environments have agreed to various contractual terms in exchange for license to the environment.
Many of those concepts are also based on the unproven and unsound notion that linking can cause a derivative work to be created. The secret of the LGPL is that
Re:So is computer generated code copyrightable? (Score:4, Funny)
A compiler is deterministic.
Except at 4 in the morning when you have a deadline coming up. Then it's folly to expect it to work like it worked before.
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A computer with a feedback loop is self aware. Being so it is a computer being. While a human being has human consciousness at least a self aware computer being has computer consciousness. A computer with computer consciousness that is aware of people has at least some non-zero potential for human consciousness.
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I think the issue here isn't the level of human interaction but that he tried to claim the AI as the creator. If he'd filed for copyright with himself as the creator of the work and treated the AI as a tool used, such as a brush or photoshop filter then I doubt his claim would have been rejected.
I would agree, especially since he deliberately tried to get the copyright issued to the AI. It would be interesting to learn how much human involvement is needed to qualify for a copyright or patent, for that matter. I suspect anyone using AI to develop products or art would argue the simple act of defining what is wanted is sufficient, or else any AI identified drug regimen or product might be unprotectable. No doubt Mickey will fix that if it happens.
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That is fine, Mickey can have that. What we need to watch out for is those making AI apps try
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Is defining what to do enough human authorship?
Essentially, the copyright would be on the instructions, where the human creativity lies. If the instructions are eligible for copyright, the "machine-translation" by the AI can also be covered by that copyright. If there's no copyright on the instructions, then there won't be a copyright on the result.
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If I write a book, it's mine to copyright.
If I make a tool to write a book, it's mine to copyright.
If I make a tool to make tools to write a book, it's still mine to copyright.
AI is just a tool made by humans. Whoever made the tool, or owns the tool, has the right to copyright whatever the tools makes. You can't arbitrarily pretend that, beyond some level of sophistication, humans are no longer involved.
Copywrite it himself (Score:4, Interesting)
Re:Copywrite it himself (Score:4, Insightful)
This feels like the first attempts for him to create new case law, because it should be obvious that AI cannot hold patents or copyrights. But the copyright's office claiming a level of human agency is required does make the case a bit more interesting. What level of human agency is required will be a difficult to answer question, if they continue claiming human agency is required.
Is the human agency to simply ask the AI to create art enough?
Did the person who hit the generate button create the art? Or did the author of the AI create it?
How much input is required to be the author of the art? Is saying I want it to be a city landscape enough?
Re: Copywrite it himself (Score:1)
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If companies are people, then it isn't obvious at all if AI could hold copyrights or patents etc.
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He could probably copywrite the material himself as the creator of the AI that created it. AIs currently have no legal standing and are not people (although apparently corporations are for some reason). Consequently, they cannot copywrite, sue for infringement, or have any other rights. This may require changes in the law, if we ever get to an AI that is actually self-aware, but I not certain that that is happening any time soon.
One question is what do you consider the AI generated art to be? Is it true unique artwork created from scratch, is it simply an algorithm picking pieces of the images it is trained on and stitching them together, is human art actually any different? This is why I am not a lawyer.
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This may require changes in the law, if we ever get to an AI that is actually self-aware
If we ever make an AI that is self-aware then we will have a much bigger fish to fry than copyright law.
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All of this has happened before.
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Nah, only in stories.
Tool User Gets Copyright (Score:2)
He could probably copywrite the material himself as the creator of the AI that created it.
Actually whoever is using the AI tool the original author created should get the copyright in the same way that whoever uses paints and brushes to create a painting gets the copyright, not the person who made the paints and brushes.
What gets called an "AI" today is not independently intelligent - it is just a tool, one vastly more complex and capable than e.g. paints and brushes, but a tool nonetheless.
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No, they're saying he can't -- neither as the creator of the software nor as the user.
Under the US Constitution, at least, copyright can only be granted for the writings of authors, which are generally known as 'works of authorship.' That is works, created by an author, where 'creation' itself requires some creative action.
While humans can certainly use machines as tools to help create works, the human author's contribution still needs to be present for the work to be copyrightable. Reducing the human's i
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Possibly. However, I seem to recall a case where a photographer handed a camera to a monkey and then tried to copyright the picture, and got denied because he had no input into it, so it might not fly.
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Looks like it never reached a court, but experts seem to think the photographer could get copyright after all. So never mind me :) wikipedia [wikipedia.org]
Inconsistent Rulings Ahead (Score:3)
A court could also reach an alternate conclusion on Thaler’s work if he follows his rejection with a lawsuit.
The only thing we can be sure of is the copyright and patent offices will rule on these matters very inconsistently depending on how good (expensive) each applicant's lawyers are.
There is too much grey area here to have consistent and reliable standards. Unless the artist paints something with his own blood using his own skin as parchment, human technology is involved in every piece of art. This artist was trying to make a point when he filed the copyright on behalf of the AI, but the interesting cases will start when artists who use these AIs copyright the art as their own. The copyright office's claim that human agency is important will ultimately fail any reasonable attempt at defining what level of human agency is required, in my opinion.
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There is too much grey area here to have consistent and reliable standards.
Only if you base your whole theory on hot cockery.
Unless the artist paints something with his own blood using his own skin as parchment, human technology is involved in every piece of art.
This is completely, totally, fully, wholly, and in all other ways irrelevant. Only a recognized legal entity can hold copyright, and a computer is not one of those. A person can hold copyright, a corporation can hold copyright, a company can hold copyright, but a computer or computer program cannot any more than can a paint brush.
Re:Inconsistent Rulings Ahead (Score:4, Informative)
Unless the artist paints something with his own blood using his own skin as parchment, human technology is involved in every piece of art.
This is accounted for in copyright law, and more broadly in case law. It's fairly well established that "generative" art is not copyrightable. However, if a human did anything to it - then it *is* copyrightable. I think there was a series of copyright issues with fractals in the 90's that explored this. The courts held that the image of the Mandelbrot set was not copyrightable, but if an artist changes the color palette after it was generated, or crops or applies filters, then that particular image *is* copyrightable. I'd imagine the same jurisprudence would apply to AI generated images.
Interesting (Score:2)
I'd have thought that creating the algorithm would be considered part of the process of creating the art, and therefore the element of "human authorship" is there. But I ain't no judge.
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If I use Photoshop with e.g. content-aware fill to "create" an image then who gets to copyright it? The answer is me. I used the tool to create the image, so I get to copyright it.
There is fundamentally no difference between this and that.
Hey now don't forget... (Score:2)
UN, WEF Klaus Schwab - "you will own nothing and be happy"
I'm sure that includes intellectual property rights.
But guess who is planning on owning everything?
Skynet had representation (Score:3)
This is what ultimately pissed off Skynet.
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No one is saying that robots aren't justified in killing all humans.
Holy Shit! (Score:2)
US Copyright Office gets something right for once.
I assume everyone involved will resign in shame immediately.
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US Copyright Office seems fine. The problems are with terrible laws (mostly pushed by terrible companies) and terrible court decisions (pushed by the same terrible companies). Let's blame the folks who are responsible for the forest fire, not those who have to work in the burning trees.
Get it straight (Score:2)
So create a corporation that owns the AI (Score:2)
Where things get really weird is if someone gifts a whole bunch of crypto to the AI, giving the private keys to the AI to do with what it will, and it decides to buy all the shares of the corporation that owns it.
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>and the corporation can have the copyright for whatever its AI creates.
Not if it's not *copy-writable*. If they are refusing to give copyright based on lack of human authorship then no, corps won't get the copyright because there will be none to get. Expect this to change once Disney fires it's creative staff in favor of AI.
Pollock already tried it (Score:2)
Wanted to give Gravity the copyright.
I for one (Score:2)
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But think of the fun when AIs owned by different companies create similar "art" and sue each other.
Has ramifications for code (Score:2)
This is an interesting ruling, as companies are increasingly investing in AI for coding tasks, either as an augmentation or sometimes outright replacement of humans.
If an AI can not copyright its code, then it will have a lot of ramifications, including on open source software.
I am also curious on if an AI can *infringe* on copyright. If an AI can not obtain copyright itself, surely it is then immune to infringement.
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A so-called AI can't infringe copyright, but the human in control of it can.
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That's not normally how copyright works - so it will be interesting how this plays out.
Re: Has ramifications for code (Score:2)
Yes, it totally is. Nobody is citing a program for copyright infringement. They are citing the owner.
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Three points
- What you say contradicts what this ruling says.
- Who is the "owner" of an execution of an AI? The entity who owned the infrastructure at the point in time? The entity who owned the AI code?
- What if the AI has no owner then, because both of these are mutable?
Eventually, this is all likely to end up at the supreme court, because otherwise people will use this to skirt copyright in numerous ways.
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- What you say contradicts what this ruling says.
The ruling says that the AI can't hold the copyright, which is what I said.
- Who is the "owner" of an execution of an AI? The entity who owned the infrastructure at the point in time?
Yes, obviously. Or whoever is renting it. Who pays is what matters. Are you new to capitalism?
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I am also curious on if an AI can *infringe* on copyright. If an AI can not obtain copyright itself, surely it is then immune to infringement.
Turns out that our courts and laws are reasonably competent, at least when it comes to finding a liable party. Since AIs cannot own themselves, they are owned by companies or people. If those companies or people publish infringing content from their AIs, then those companies or people are liable for that infringment.
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That is not how copyright law works though. In order for it to work that way, legally, the AI would need to be an employee of the company so that it becomes a work for hire. If the AI is not an employee, then the copyright is not assigned to the employer.
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I am also curious on if an AI can *infringe* on copyright. If an AI can not obtain copyright itself, surely it is then immune to infringement.
Is the AI searching through other people's (including open source projects) code and copying it into the code that the AI generates? Any code that's created independently, no matter how similar, is not infringing.
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Well that's exactly how Github CoPilot works, so it might be.
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I would expect that if the human who set up the AI didn't use similar "clean room" tactics that are currently used to get a copyright-safe implementation of something (which means no way for the AI to access the code whose infringement is in question) then yeah, it can infringe. If it comes up with substantially similar code on its own and can be proven not to have the ability to copy the existing code, it should be safe.
Related: Monkey selfie copyright dispute (Score:2)
Monkey selfie copyright dispute [wikipedia.org]
IMO arguing that an AI was involved in creating something is somehow different than a person doing it (it's just another tool) is crazy. Of course the person wielding the tool needs to hold the copyright.
The purpose of copyright law (Score:5, Insightful)
AIs can't benefit of copyright law for their creative work, because the purpose of copyright law is to force an artificial monopoly on an intangible thing so that the author can earn a living with it.
Since an AI does not need to "earn" anything to sustain itself, it doesn't need copyright law. Copying an AI's work does not harm the AI in any way. It may harm the (human) company and the (human) creator of the AI, but it does not harm the AI itself.
Maybe one day, when AIs have to start paying their own bills for, say, their energy consumption, then the situation will become different. If not paying the bills means the shutdown of the AI, then it will be "alive" in the same way that a company is considered "alive" - fictional entities that are obligated to bear expenses in order to sustain their existence.
Only then AIs will be able to assert their copyright claims on their own, as a juridical person.
The AI cannot, but someone used it (Score:2)
Attempt to Find for AI Ownership (Score:2)
Call me cynical, but this looks like an intentional process to show that an AI (which isn't actually intelligent) can or should be treated as an independent, sentient entity. If that were to occur in this extremely nascent phase of development, I could guarantee you that people would find a way to externalize liabilities/risk and put them onto an AI.
"Oh, hi. Ya. We humans didn't actually poorly invest your retirement. This AI did it. We just happened to get really rich in the process."
"Huh? Your 'self-drivi
Command responsibility (Score:1)
Already been proven. Move along. (Score:1)
Supreme Court will overturn this (Score:2)
All kinds of stuff (Score:2)
Most of our modern "art" is at least partially done by AI. And I don't think the court has looked at all the implications.
That photo you edited in Photoshop? It now has automated filters. Some programs like Luminar will even replace clouds in the sky and overall lighting automatically by machine learning.
The "raw" photo on your phone? It actually was a composite of many images, and went through an ML accelerator.
The document you wrote? There are now AI assistants that auto complete the sentences. Just writi
Why? (Score:2)
Animals either :-( (Score:1)