Artificial Intelligence and the Copyright Process
Guest post by Erin Cearlock, Intern
The rise of artificial intelligence (AI) has implications for intellectual property (IP) law, as qualifications for copyright protection are still unclear for AI-generated art and visual artists navigate the applicability of the fair use doctrine by AI companies.
State of the (AI) Art
Artificial intelligence, or AI, is the use of computer systems to mimic human capabilities and perform processes that normally require human intelligence, such as problem-solving, reasoning, and creativity. With the fast growth and popularization of AI software such as ChatGPT and Midjourney, the use of artificial intelligence in the creation of new ideas and works has many implications for intellectual property. Specifically for tangible works that qualify for copyright protection, such as literary, musical, and visual artworks, the incorporation of AI-generated art complicates requirements for originality and creative control when determining authorship. This post will explore the current state of AI-generated art and intellectual property protections.
AI-Generated Art
AI-generated art encompasses any digital artistic creation that utilizes AI tools, spanning images, videos, audio compositions, and music. Diverging from traditional digital art, which originated in the 1960s and gained prominence in the 1980s, AI art represents a distinct category shaped by the unique capabilities of artificial intelligence.
The validation of the art market’s interest in AI art can be seen in the recent sale of an artwork created by an algebraic expression for $432,500 at Christie’s New York Auction House. As AI emerges as a new medium for visual art, questions around authorship and originality can be raised. What qualifies as art protected by copyright if AI is generated? And how can human visual artists protect their own work from being sourced to “train” AI models producing artwork without permission?
Relevant Cases
If you use AI software to create art, the validity of your copyright claim could be dependent on the extent of your creative control over the work. Your work falls under copyright protection as soon as it is created and fixed in a tangible medium, however, it must be an original work of authorship made entirely by you. In Thaler v. Perlmutter (2023), Stephen Thaler attempted to register copyright for a work of visual art, “A Recent Entrance to Paradise”, with the author listed being his “creativity machine”, an AI computer system that Thaler owns. The U.S. Copyright Office rejected Thaler’s claim that his ownership of the machine should transfer the copyright to him, stating that only a human can be considered an author under the U.S. Copyright Act. Consequently, artwork produced exclusively by a non-human entity does not meet the criteria for copyright protection. Even though Thaler owned and created the AI tool, the Copyright Office stated his lack of direct involvement in the creation of the artwork does not qualify as an “original work of authorship”. Thaler was not actively engaged and did not directly craft the work himself, so he was not considered an author of the work. Additionally, only humans are able to be considered authors. But this outcome raises the question, if Thaler does not have the rights to artwork created by an AI tool he designed, then who does have copyright? As artists expand their toolbox with new creative mediums like AI, it remains to be seen how far copyright protection extends.
While the above case shows that entirely-AI art is ineligible for copyright, the later extent of an artist’s manipulation of an AI art piece remains to be seen. When Kristina Kashtanova submitted her graphic novel Zarya of the Dawn for copyright, the words themselves and the layout of the images were granted copyright, but denied for the individual images themselves. The U.S. Copyright Office’s reasoning was that Kashtanova’s human creativity was directly involved in the “selection, coordination, and arrangement” of the text, images, and storyline. However, because Kashtanova utilized the generative AI software MidJourney to create the graphic novel’s images, the images were not a product of human authorship and therefore unprotected by copyright.
While this decision could be interpreted as a partial victory for artists who use AI, the extent to which a human user needs to exert control over generative AI in order to claim copyright for the resulting output needs further clarification from the Copyright Office and the courts. Additionally, the extent of disclosure of the use of AI in the copyright application process has been impacted as the Copyright Office now requires detailed and explicit documentation of what parts of a work were human or machine-generated.
The Threat of “Scraping”
Another area of concern for artists regarding AI is the unauthorized use of their works to “train” generative AI machines to create artwork in a similar scheme or style. Artists’ works are taken, or “scraped”, from the internet, often without the artists’ knowledge or consent. The images are then converted into datasets that “teach” AI to create similar art through machine analysis of the image’s composition and related text.
Some argue that this covert scraping of artists’ original work online constitutes intellectual property theft and copyright infringement. For example, in February 2023, Getty Images filed a complaint against generative AI company Stability AI for copyright infringement, claiming Stability AI unlawfully copied and processed over twelve million images with Getty’s watermark to train software. Getty argues that this is intellectual property theft, as Stability AI did not obtain a license to scrape the Getty collection for commercial purposes. It remains to be seen if the courts will uphold Getty’s claim, as the parties are still arguing jurisdictional discovery, or whether the U.S. courts even have the ability to rule on this matter as Stability AI is headquartered in the U.K.
Generative AI companies may claim protection for scraping under fair use. Fair use is a legal principle that supports freedom of expression by allowing the use of copyrighted works without a license in specific situations. Whether or not image usage is protected under a fair use defense depends in part on how similar the AI generated work is to the original, and how much of the original work was incorporated.
This is a continuation of the discussion of fair use in the visual arts currently playing out in Andy Warhol Foundation v. Goldsmith. The Supreme Court determined that artist Warhol violated U.S. copyright law as his portraits were based on a photograph of the musician Prince by Lynn Goldsmith. Warhol's portraits lacked sufficient transformative elements compared to the original photo, and were therefore not protected by the fair use doctrine.
This decision could signal that AI generated artwork that closely resembles the original is not “transformative” enough in the eyes of the court to constitute fair use and is therefore unlawful. Is AI producing variations of copyrighted works, or are the programs reshaping existing content into something entirely different? The extent of transformation that is necessary for the fair use defense to apply requires further clarification as artists navigate protecting their original works.
For now, artists can work towards registering copyright to protect their original works of art, so long as their own human creativity is directly involved and they can claim authorship. The extent of one’s use of AI software for works of creative expression may influence the ability to receive copyright protection. Regarding scraping, besides pursuing legal action, the only way to prevent infringement may be by removing original works from the internet or otherwise making them inaccessible to third-party scraping efforts. This developing area of intellectual property law will have critical implications for visual artists and other creators alike as AI’s place in the world is defined.
Take the Next Step
If you have further questions or are seeking guidance on how these developments might impact your work or business, BCR Firm is here to help. From ensuring compliance to leveraging new opportunities, the interplay between AI and copyright necessitates a nuanced understanding and a proactive approach. We invite you to schedule a complimentary 15-minute introductory call with us today.