” A Recent Entrance to Paradise”, Stephen Thaler (not protected by copyright)

One of the ongoing debates about works made with generative AI is whether they qualify for copyright protection. Should they? Let’s consider the essence of copyright. What is its raison d’être? According to the classical European definition, it is to respect the property rights of the author (droit d’auteur), sometimes described in the simple terms of the Eighth Commandment (“Thou shalt not steal”). According to the more utilitarian Anglo-Saxon rationale for copyright, it is to benefit society by rewarding and incentivizing authors, thus stimulating further production of works for the greater good. In either case, it gives one pause to wonder how works created by AI fit into either school of thought. Is there an inherent property right in content produced by an algorithm? How does copyright protection incentivize an algorithm to produce more “useful arts”?

In my view, the only way one can square this circle is by attributing human creation, or at least a degree of human creation, to AI generated works. But this opens Pandora’s box; if there is to be human attribution, to whom in the chain of creation does the credit fall? How much human creativity is required? It also raises the spectre of hypocrisy, as the AI industry hijacks the creative work of others, without recognition or recompense, yet has the gall to claim that AI outputs are unique and worthy of protection. I have written about these issues before (here, here, and here), but a couple of recent cases in the US have brought these fundamental issues bubbling back to the surface.

When it comes to trying to prove that AI and copyright protection go together, there are a couple of different approaches. One, most notably espoused by an AI technologist in the US named Stephen Thaler, is to claim that a given work was produced exclusively by AI but should nonetheless be protected. In Thaler’s case, the work for which he is seeking copyright registration was created by a particular AI “machine” (or algorithm), specifically the one he “invented”, the so-called “Creativity Machine”. Thaler claims his machine should hold the copyright but behind the machine, of course, stands Thaler. This is not dissimilar to existing British copyright law where, under Section 178 of the Copyright, Designs and Patents Act, 1988, works “generated by computer in circumstances such that there is no human author of the work” are nevertheless accorded copyright protection for fifty years from date of creation, with the copyright being held by “the person by whom the arrangements necessary for the creation of the work are undertaken”, even if there was no creative act undertaken by that person.

As I noted in an earlier blog post (The Humanity of Copyright), Thaler began his (so far) unsuccessful pursuit of US copyright registration for his professed 100% AI generated art work, “A Recent Entrance to Paradise”, back in 2018. Despite several reversals, both in the application process at the USCO, its Review Board and in the District of Columbia courts, Thaler persists in his quixotic journey. He has unsuccessfully argued various precedents for non-human copyright ownership, such as the “work for hire” doctrine and corporate copyright, although it is worth noting that humans stand behind both. He is now apparently pursuing the common law theory of “fruit of the tree” in his attempt to get the USCO to register his work. To my non-legal mind, this is the ultimate stretch.

What Thaler could do is to claim that at least part of the work is the result of his personal creative efforts. That was the USCO outcome for the graphic novel Zarya of the Dawn produced by writer Kristina Kashtanova (who identifies as “they”). The novel contained both generative artwork and human story and design elements. After initially registering Kashtanova’s work, the Copyright Office cancelled the registration after they (Kashtanova, that is) claimed it was AI produced. The Office subsequently reconsidered and granted copyright protection to the parts of the work Kashtanova had created, namely the text, and selection and arrangement of the work’s written and visual elements. That, however, is a step too far for Thaler who continues to push for recognition by the Copyright Office that a work produced exclusively by his “Creativity Machine” can be protected by copyright. That seems very unlikely to happen.

While Thaler doggedly pursues copyright registration for “A Recent Entry to Paradise” (featured on this blog post—after all, it is not copyright protected), others who have created art using AI are following a different track. One of these is Jason B. Allen, whose award-winning digital art creation “Théâtre D’Opéra Spatial” has also been denied copyright registration. Allen’s approach is the opposite to that taken by Thaler. In contrast to Thaler’s insistence that the work is a creation of AI (his AI “machine”), Allen insists that he is the source of the creative inspiration behind the work, notwithstanding that it was created by an AI algorithm, Midjourney. Allen’s pursuit of copyright registration for “Théâtre” will be the subject of my blog post next week.

This article was first published on Hugh Stephens Blog