THE RISE OF MACHINE-MADE ART: IMPLICATIONS FOR COPYRIGHT LAW
Get ready to be taken on an eye-opening journey through the ever-evolving world of AI and copyright laws! The battle over the legality of AI-generated art has taken a dramatic turn as the United States Copyright Office revoked the first-ever copyright for a comic book created using AI.
In a previous piece, we delved into our position on the legal use of AI, and now, we’re excited to take it a step further. Buckle up as we explore the gripping story of Kris Kashtanova, an artist who utilized AI to create a comic book and claimed copyright. A legal battle with the US Copyright Office (USCO) followed, exposing copyright laws' intricate and fascinating nuances in the age of AI-generated art. It’s time to grab your popcorn and dive deep into the intriguing facts of this gripping story.
THE BACKGROUND
On September 15, 2023, Kashtanova announced on her Instagram page that they had obtained the first-ever US copyright for a comic book created using AI for the 18-page book “Zarya of the Dawn.”
- The artist openly stated that they used Midjourney technology to create the comic book included on the cover page.
- Ms Kashtanova claimed that, together with the lawyer, they established a precedent that AI-generated art is copyrightable.
However, the USCO disagreed with the artist. When the issue was brought to their attention, they requested a further explanation from the artist’s attorney. The USCO argued that the creation process was not disclosed in the application, and unless additional information were provided, they would cancel the application.
What are the main arguments of the USCO?
- Putting the word “Midjourney” on the comic book’s cover does not satisfy the necessary disclosure requirements.
- It is unclear whether this was a calculated move by Kashtanova to indicate the use of Midjourney without clarifying what it meant.
- The copyright attorney should have known that a word without an indication, like © or ™ on the cover, would only be interpreted as part of the title.
Furthermore, suppose the post on Instagram was accurate, and Kris was motivated by her attorney to create a precedent. In that case, it appears odd that they did not clearly and thoroughly describe the creation process.
Therefore, in a letter to Kashtanova’s attorney on February 21, the USCO declared its decision on the authorship of the comic book “Zarya of the Dawn.” The USCO stated that:
- Kristina Kashtanova is the author of the text and the selection, coordination, and arrangement of the visual elements of the work.
- The images generated by AI technology are not the product of human authorship and cannot be protected by copyright.
- The USCO will revoke the original certificate issued to Ms Kashtanova and issue a new one covering only the explicit material the artist created.
LEGAL BASIS
The Copyright Act provides the framework for defining the scope of copyright protection, which includes:
- registering “original work of authorship fixed in any tangible medium of expression.”
The term “original” refers to independent creation and sufficient creativity. As the USCO explained in their decision, a famous copyright case established that:
- a work “must have been independently created and possess sufficient creativity to meet the threshold for protection."
A modicum of creativity is required, but some pieces may fail to meet this threshold.
As we mentioned in our previous article about AI-generated art, the USCO confirmed this position in their response to Kashtanova. They cited another famous case in which a photographer who took a picture of Oscar Wild claimed copyright. The Supreme Court decided in this case that photographs were protected by copyright because they were “representatives of original intellectual conceptions of the author,” defined as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” The USCO reflects this understanding, stating that the Office “will refuse to register a claim if it determines that a human being did not create the work.”
In the famous “monkey selfie copyright case,” which involved British nature photographer David Slater and PETA, the USCO clarified that it would not extend copyright protection to any works created by non-human entities. However, the text of Kashtanova’s comic book was found to be protected by copyright, as it was created entirely by a human author and exhibited an abundance of creativity. Similarly, the book’s selection and arrangement of images and text were considered protectable as a compilation since they were produced entirely by a human author and contained sufficient creativity to be protected under copyright. Nonetheless, images created by artificial intelligence were found to be ineligible for copyright protection.
WHERE DOES ONE DRAW THE LINE BETWEEN HUMAN AND NON-HUMAN CREATION?
While there is no specific rule, authorities such as the USCO will likely consider the author’s degree of control over the creation process. If an author controls the creation process, then copyright protection is more likely to be granted.
- For instance, a photographer may design the photoshoot, select the model’s attire and makeup, and adjust the lighting and decorations, even if another individual takes the photograph.
Conversely, if the author does not control the process, as in the case of accidental or animal photography, neither the photographer nor the force of nature would be eligible for copyright protection. This logic also applies to machine-created works, such as those made by robots, computer programs, or artificial intelligence. The crucial factor is the level of control exercised by the human author.
ARTISTS HAD EMPLOYED TECHNOLOGY TO CREATE ART LONG BEFORE ARTIFICIAL INTELLIGENCE WAS INVENTED.
French artist Yves Klein, for example, utilized flamethrowers and paint-throwing machines in his artistic process. In 1957, he patented a paint thrower called the “air gun,” which allowed him to produce his famous monochrome blue paintings. Klein sprayed a thin layer of paint onto large canvases with the air gun, creating smooth surfaces that emphasized the colour of the paint.
Similarly, American artist Jackson Pollock is widely recognized for using machines to create his paintings. His “drip painting” or “action painting” technique involved dripping, splashing, and flinging paint onto a canvas spread on the floor, using sticks and syringes.
CONCLUSION
Using technology in the creative process does not diminish the value of the resulting work of art. However, to be eligible for copyright protection, the artist must have had control over the creation process, regardless of whether the technology employed was a camera, a flamethrower, or artificial intelligence.
The author must have created the original element of the work, not the machine. If the artist inputs something like “create an image of a teenage girl with big brown eyes and dark hair” into an artificial intelligence system, the machine would perform the task, and the work would not be eligible for copyright protection.
This article was written by Yuriy Brisov & Catherine Smirnova of Digital & Analogue Partners. Visit dna.partners to learn more about our team and the services.
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