Copyright and AI - August Schreiber

 Is AI Copyrightable?

August Schreiber

The ambiguity around the copyrightability of AI-generated art has been cause for concern in the art community. AI trains on art that has already been created, and potentially already copyrighted, but does this work violate copyright law? Can it be copyrighted itself if it’s using pre-established work?

The landmark case Thaler vs Perlmutter attempted to answer some of those questions. Thaler applied for a copyright claim for a piece of work that had been AI-generated. The US Copyright Office denied his claim, citing the absence of human authorship. Thaler argued that he owned the AI machine that created the work, but the USCO (specifically Perlmutter) denied his claim again, referencing the USCO compendium that says “the Office will refuse to register a claim if it determines that a human being did not create the work.” 

Thaler filed a complaint against the Registrar, Perlmutter, claiming that the denial of his copyright claim was a violation of the Copyright Act. However, when it went to court, the judge ultimately upheld the Copyright Office’s decision to deny his copyright claim, agreeing that the denial was fair for work not including any human involvement. Thaler, not wanting to give up that easily, appealed the judge’s ruling. This case is actually still open, with an oral argument scheduled for later this month, September 19th. 

The US Copyright Office is obviously a vital part of deciding copyright law, but in the face of new and ever-changing technology, how effective can it continue to be? In an effort to keep up with the changing technological landscape, the USCO introduced the Artificial Intelligence Initiative in March 2023. The AI Initiative further emphasizes that there must be human authorship for work to apply for copyright. Throughout April and May of that year, the USCO held four public virtual listening sessions to hear out the thoughts and concerns of the community. Three common issues kept getting brought up: disagreement on whether AI’s training on copyrighted works is considered fair use, increasing the public’s knowledge of how these AI technologies work, and additional clarity on the registration guidelines set forth by the AI Initiative. This demonstrates that this isn’t an artists-only issue. The general public is concerned with how AI should be regulated. 

In June 2023, the USCO held an online webinar to further explain the registration guidelines regarding the AI Initiative, stating that the artist must disclose any “appreciable amount” of AI used in their works, through a simple statement similar to how one would disclose other unclaimable media. In August, the USCO asked for public comment on a multitude of AI issues, receiving over 10,000 responses. Throughout December 2023 into February 2024, Perlmutter, the Register of Copyrights and Director of the Copyright Office, submitted several updates to Congress on the status of the AI initiative. 

In July 2024, the USCO published its first report on copyright and AI, saying that although current federal statutes on artistic style and copyright are acceptable, immediate updates to federal reform are necessary to prevent other issues created by AI generation. The Copyright Act could be invoked in situations where the output of the AI replicates protectable portions of the work, as well as the style. Many states offer copyright protections, but most are unable to keep up with the rapid changes to technology. There aren’t any federal statutes that have the sole purpose of protecting a person’s likeness, voice, or image, and the protections provided by other acts and laws are too narrow. 

This problem extends outside of just the art world. With no protection of people’s voices and likenesses, the public can fall victim to a slew of misinformation and misrepresentation. The Copyright Office proposes Congress establishes a federal law to protect the public from the distribution of unauthorized digital replicas. Because these AI generative technologies are always adapting, changing, and improving, Congress needs to act sooner rather than later. This isn’t solely an art community issue, this can affect everyone, and it must be taken seriously. 


Sources

https://itsartlaw.org/2024/08/26/is-artificial-intelligence-copyrightable-a-report-on-the-copyright-offices-ai-initiative/

https://itsartlaw.org/2023/12/11/case-summary-and-review-thaler-v-perlmutter/





Comments

  1. Breanna VinsonSeptember 17, 2024 at 11:56 AM

    Hello, August; this topic is one of particular interest to me as AI's growing presence is a cause of concern for me, especially where art is concerned. I find it interesting that you chose to focus on what this means in terms of copyright and the influences the emergence of AI has on law. With the USCO's inputs in this area, I would consider the separation of human and AI in these terms to be crucial. AI "artists" are nothing more than users of a technology that creates an image for them. With this generation coming at the press of a button, who's to say that the prompter owns it when anyone can generate the same prompt?

    With your closing statement, I wholeheartedly agree that action should be taken sooner rather than later for the sake of creatives and everyone. Looking into this further, I found that "to date, no court has considered AI training to be copyright infringement."[1] This is not only telling to the need for more movement in these efforts, but the concerning nature of the landscape. This source also argues that courts are likely to consider this a form of fair use, allowing use of copyrighted work to continue training the present AI models. This not only drives a concerning point but brings into question how fair use applies to this area, making me wonder what the implications the element has on the current landscape of AI.

    [1] Crawford, Kate, Schultz, Jason. "Generative AI Is a Crisis for Copyright Law." Issues in Science and Technology. 16 January 2024. https://issues.org/generative-ai-copyright-law-crawford-schultz/. Accessed 17 September 2024.

    ReplyDelete
  2. CRITICAL ISSUES IN CONTEMPORARY ART (Fall 2025)October 7, 2024 at 3:14 PM

    This comment has been removed by the author.

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  3. CRITICAL ISSUES IN CONTEMPORARY ART (Fall 2025)October 7, 2024 at 3:15 PM

    (From Tori Evans)
    Hi August! I think the initial question you pose is really interesting! I also think that bringing in Thaler vs Perlmutter is also a very interesting way to look at potential answers to the questions you posed, especially because these questions alone are such a hot topic at the moment. I would suggest for next time though that you include the date that this court case arose initially, as I do like the add on about the date the next oral argument took place. I also wonder what, if provided, all the responses from the public were like on the topic of the issues of AI, and what information was gathered from the over ten thousand responses they received. Your expansion past the concerns of just AI-art I found rather interesting as well, as most of the time the audience in our local area tends to focus much more on the art repercussions, let alone misinformation and misrepresentation created by someone's personal likeness.|

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