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  • L Higgins and S Pettigrove

US judge appraises AI artistry, finds copyright lacking

A Washington DC court has ruled that works of art created by artificial intelligence without any human input cannot be copyrighted under US law.

On 18 August 2023, US District Judge Beryl Howell affirmed the decision of the US Copyright Office to reject an application filed by well-known computer scientist and AI-specialist, Stephen Thaler. Judge Howell's decision made it clear that copyright can only be attributed to works involving a human author. As noted below, what that means in the context of generative AI will likely fall to be determined in future litigation.

The applications were made by Mr Thaler for artworks created by his Creativity Machine. In his copyright application, Mr Thaler claimed that the works in question had been created autonomously by AI and lacked human authorship, but argued that he should properly be attributed as the author of those works.

The single legal question that fell to be determined was whether a work generated autonomously by a computer falls under the protection of US copyright law upon its creation. Judge Howell found that it does not and, unfortunately for Mr Thaler, on procedural grounds, excluded newly raised arguments noting Mr Thaler's role in developing and prompting the Creativity Machine.

Friday's loss was not the first for Mr Thaler, who earlier this year failed in his challenge to the US Patent and Trademark Office's refusal to issue patents for inventions that his DABUS system created which included a beverage holder and emergency light beacon. DABUS is short for Device for the Autonomous Bootstrapping of Unified Sentience.

In February this year, the US Copyright Office also rejected an artist's bid for copyrights in artworks generated through the generative AI system 'Midjourney', despite the artist's arguments that the program was simply part of their creative process. In distinguishing how the software was different to other programs used by artists (like Adobe Photoshop), the Copyright Office contended that Midjourney's specific output could not be predicted by users making it different to other tools for copyright purposes.

In this case, Judge Howell noted that although the rapidly evolving field of generative AI has raised several intriguing intellectual property issues, this case was straightforward in that 'human authorship' was a bedrock requirement of copyright based on centuries of precedent. However, she also noted that:

We are approaching new frontiers in copyright as artists put AI in their toolbox. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more

Accordingly, it remains to be determined whether copyright may apply in AI-generated works which involve a degree of human prompting or under foreign laws.

AI has been identified as a critical technology in Australia's national interest by the Department of Industry, Science and Resources (DISR). The DISR recently released the 'Safe and responsible AI in Australia' discussion paper, which aims to support the adoption of fast-paced technologies like AI for Australian business whilst mitigating the potential legal and commercial risks associated with the technology.

The rapidly evolving AI landscape presents significant opportunities as well as uncertainties. As new technologies or ways of working and doing business arise with AI, it is important for artists (and for anyone working with AI) to engage with AI in a considered manner noting the potential legal risks. A consideration of how to address and mitigate these risks will be an important part of any go-to-market strategy.

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