In February 2022, the US Copyright Office rejected an application to grant copyright an AI algorithm – called the “creation machine”. The application from Amnesty International’s founder, Dr Stephen Thaler, was reviewed by a three-person board of directors. Entitled “Modern Entrance to Heaven,” the artwork depicts train tracks leading through a tunnel surrounded by greenery and vibrant purple flowers.
Thaler submitted his copyright application and designated Creativity Machine as the author of the work. Because the copyright request was specific to the device, it did not fulfill the “human authorship” requirement that goes into copyrighting something.
Council said in the copyright decision.
Founder of Imagination Engines
(Courtesy of Imagination Engines, Inc.)
Thaler believes the law is “human biased” in this case.
While the copyright request prompted credit to be given to the creativity machine, the case opened questions about the true author of the art created by artificial intelligence.
Attorney Ryan Abbott, partner at Brown, Neri, Smith & Khan LLP, helped Thaler as part of an academic project at the University of Surrey “challenging some established belief about the role of AI in innovation.” Abbott explains that copyrighting AI-generated art is difficult due to requirements for human authorship, which he finds “are not based on relevant law or case law.” There is an assumption that only humans can be creative. “From a policy perspective,” he says, “the law must ensure that work done by a machine is not legally treated differently than work done by a person.” “This will encourage people to make, use and build machines that generate innovations of social value and creative businesses.”
From a legal point of view, the work generated by AI falls on a scale where human participation lies at one extreme and the autonomy of AI lies at the other.
“It depends on whether a person has done something that traditionally qualifies them to be an author or is willing to look at some unconventional criteria for authorship,” Abbott says.
“The topic of owning a business created by artificial intelligence is something that has been discussed for decades, but not in a way that is of great commercial importance.”
In Epstein’s article, he used the example of Edmund de Bellamy’s painting, a work created by a machine learning algorithm that sold at Christie’s Art Auction for $432,500 in October 2018. He explained that the work would not have been made without the humans behind the code. As artwork generated by artificial intelligence gains commercial interest, more emphasis is placed on authors who deserve credit for the work they put into the project. “The way you talk about systems has very important implications for how people are given fiduciary responsibility,” he says.
This has raised concerns among illustrators about how to give credit to art created by artificial intelligence, especially to those who feel that software can pull from their online work without citing or compensating them. “A lot of professionals worry that it will put them out of their jobs,” says painter Gurney. This is already starting to happen. The artists you threaten the most are editorial illustrators and concept artists.”
It is common for AI to create images in a certain artist style. If an artist is searching for something in the context of Vincent van Gogh, for example, the program will draw from their pieces to create something new in a similar style. This is where it can get muddy, too. “It is difficult to prove that a copyrighted work or works have been infringed, even if the artist’s name is used in the claim,” says Gurney. “What images were used in the entry? We don’t know.”
“It is difficult to prove infringement of a copyrighted work or works, even if the artist’s name is used in the claim,” he says. “What images were used in the entry? We don’t know.”
Legally, rights holders are interested in granting permission or receiving compensation in exchange for merging their work into another piece. Abbott says these concerns, while valid, haven’t quite aligned with the technology. “Right holders weren’t expecting when they were doing the work that the value would come from training their machine learning algorithms,” he says.
A 2018 study by The Pfeiffer Report sought to find out how artists are responding to advances in artificial intelligence technology. The report found that after surveying more than 110 creative professionals about their attitudes to AI, 63% of respondents said they were not afraid that AI would threaten their jobs. The remaining 37% were either a little or very afraid about what this might mean for their livelihood. “AI will have an impact, but only on productivity,” Sherry Morris, head of marketing, creativity and brand strategy at Blackhawk Marketing, said in the report. “The creative vision has to be there first.”
Photographer and artist Jonas Jödicke worked with WOMBO Dream, another AI art generation tool, before gaining access to DALL-E 2 in mid-July. From his experience as an illustrator using artificial intelligence, he says it could be a “big problem” if software sourced his own image and made something similar in his style. He explains that programs like DALL-E are pulled from so many sources online that they can “create something on their own,” very different from other businesses.
(Courtesy of Jonas Jödicke)
Jödicke acknowledges concerns about artwork theft, particularly as someone who has stolen his work and used to sell products on the likes of Amazon and Alibaba. “If you upload your art online, you can be sure that at some point it will be stolen, especially when you have a greater reach on social media,” he says.
Regardless, Jödicke sees AI as a new tool for artists to use. This compares to the regressive attitudes some people have towards digital artists who use software such as Adobe Creative Suite and Pro Tools. Sometimes artists who use these programs are accused of not being “real artists” even though their work is unique and full of creativity. “You still need your technical abilities and knowledge to really polish these results and have them looking great and beautifully displayed,” he says.
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