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posted by hubie on Thursday August 24 2023, @09:51PM   Printer-friendly

"US copyright law protects only works of human creation," judge writes:

Art generated entirely by artificial intelligence cannot be copyrighted because "human authorship is an essential part of a valid copyright claim," a federal judge ruled on Friday.

The US Copyright Office previously rejected plaintiff Stephen Thaler's application for a copyright because the work lacked human authorship, and he challenged the decision in US District Court for the District of Columbia. Thaler and the Copyright Office both moved for summary judgment in motions that "present the sole issue of whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright," Judge Beryl Howell's memorandum opinion issued Friday noted.

Howell denied Thaler's motion for summary judgment, granted the Copyright Office's motion, and ordered that the case be closed.

Thaler sought a copyright for an image titled, "A Recent Entrance to Paradise," which was produced by a computer program that he developed, the ruling said. In his application for a copyright, he identified the author as the Creativity Machine, the name of his software.

Thaler's application "explained the work had been 'autonomously created by a computer algorithm running on a machine,' but that plaintiff sought to claim the copyright of the 'computer-generated work' himself 'as a work-for-hire to the owner of the Creativity Machine,'" Howell wrote. "The Copyright Office denied the application on the basis that the work 'lack[ed] the human authorship necessary to support a copyright claim,' noting that copyright law only extends to works created by human beings."

[...] In the Friday ruling on copyright of an AI-generated image, Judge Howell wrote that Thaler attempted "to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer's work would transfer to him, as the computer's owner; for example, by operation of common law property principles or the work-for-hire doctrine." But these arguments "put the cart before the horse" because they only address "to whom a valid copyright should have been registered," not whether a copyright can be granted for a work generated without human involvement, Howell wrote.

"United States copyright law protects only works of human creation," Howell wrote.

[...] Thaler pointed out that the Copyright Act does not define the word "author." But Howell wrote that the law's "'authorship' requirement as presumptively being human rests on centuries of settled understanding."

[...] The US Constitution conceived of copyrights and patents "as forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent... Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them."

Copyright has never stretched far enough "to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright," Howell wrote.

[...] Future cases are likely to present more challenging legal questions "regarding how much human input is necessary to qualify the user of an AI system as an 'author' of a generated work" and "how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works," Howell wrote. But Thaler's case "is not nearly so complex."


Original Submission

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Microsoft's AI text-to-image generator, Copilot Designer, appears to be heavily filtering outputs after a Microsoft engineer, Shane Jones, warned that Microsoft has ignored warnings that the tool randomly creates violent and sexual imagery, CNBC reported.

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Original Submission

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  • (Score: 3, Interesting) by ElizabethGreene on Thursday August 24 2023, @10:11PM (10 children)

    by ElizabethGreene (6748) Subscriber Badge on Thursday August 24 2023, @10:11PM (#1321768) Journal

    Wex says a derivative work is a copyrighted (or copyrightable) work that comes from another work. If an AI's work product isn't copyrightable, does that mean it can't produce derivative works?

    (I'm not asking if the AI *is* a derivative work; That one will need someone smarter than me.)

    • (Score: 1, Funny) by Anonymous Coward on Thursday August 24 2023, @10:23PM (9 children)

      by Anonymous Coward on Thursday August 24 2023, @10:23PM (#1321769)

      I don't know if jurisdictions overlap, but I think this would have implications for the NYT lawsuit against ChatGPT. Any good lawyer should certainly be arguing so anyway.
      If ChatGPT's output can't be copyrighted, then it can't infringe copyright either.

      • (Score: 5, Interesting) by Mykl on Thursday August 24 2023, @11:32PM (8 children)

        by Mykl (1112) on Thursday August 24 2023, @11:32PM (#1321772)

        It's an interesting angle, and may potentially get some mileage in court.

        My attempt to provide an argument for why ChatGPT must simultaneously observe copyright, but can't claim it for itself:

        • The purpose of copyright is to provide exclusivity of a creative work to an author for a "limited" (hah) amount of time
        • In order to qualify as an author, one must be human (per the judge's ruling above), meaning that AI can't claim copyright
        • The purpose of enforcing copyright is to ensure that no unauthorised copies of the copyrighted material are distributed regardless of the medium used to produce that unauthorized copy. In other words, it doesn't matter whether the copy was written down by hand, translated into another language, photocopied/scanned or re-generated via AI - all that matters is that there is a copy that the author didn't authorise. Therefore, the AI copy is infringing purely because it exists

        As to whether you could sue the AI or the owner of the AI, well that's a separate question.

        • (Score: 2, Informative) by Mezion on Friday August 25 2023, @03:54AM (1 child)

          by Mezion (18509) on Friday August 25 2023, @03:54AM (#1321784)

          In other words, it doesn't matter whether the copy was written down by hand, translated into another language, photocopied/scanned or re-generated via AI - all that matters is that there is a copy that the author didn't authorise. Therefore, the AI copy is infringing purely because it exists

          I would add into this that AI copies such information in memory a) when the employee creates a copy on the training terminal, b) when the model loads the training data to be worked upon, and c) when the data is re-used with the AI software.
          IANAL, but I believe that situations a) and b) are illegitimate copies/usage prior to a copy being "read" AI. I am using what the courts decided Pystar infringement as being - any copy that occured, which includes in memory and in transit copies or any incidental copy that may be created to complete a job, regardless of its existence afterwards.
          In response to GP post - AI can't obtain copyright, so a derivative work created by AI cannot exist because it is not copyrightable work, and creation of such would be copyright infringement against the initial works.

          • (Score: 0) by Anonymous Coward on Saturday August 26 2023, @11:15PM

            by Anonymous Coward on Saturday August 26 2023, @11:15PM (#1321998)

            any copy that occured, which includes in memory and in transit copies or any incidental copy that may be created to complete a job, regardless of its existence afterwards.

            If we get actual AI that will have to change. How is an "AI" reading something different to a person reading it?
            My personal opinion is that an infringement of copyright should not occur until a copy is passed on to a third party while the second party still has it.

        • (Score: 4, Interesting) by bzipitidoo on Friday August 25 2023, @10:39AM (2 children)

          by bzipitidoo (4388) on Friday August 25 2023, @10:39AM (#1321816) Journal

          The "purpose of copyright", you say, is to prevent distribution of unauthorized copies? No, just no. Says right there in the copyright clause that the purpose is to "promote the progress of science and useful arts". And we understand why: to encourage more art and science by rewarding the production of it.

          It does immediately go on to say that the means of doing so is "by securing for limited times ... the exclusive right...", but today we know better than ever that that particular means has a lot of problems. Asking us all to submit to artificial scarcity regimes, with all the extra expense and waste that imposes, solely so that authors don't miss out on one cent of royalties, is asking too much. We spend many times more on living with, arguing about, and enforcing these impossible and stupid restrictions than the value we and the authors receive from the art that otherwise, by entirely hypothetical dubious arguments that have repeatedly been debunked, might not have been created. Don't confuse the means with the purpose.

          One example of waste is the "jewel case" that audio CDs still come in today. The ostensible purpose is to protect the medium upon which precious audio data resides. Bull! Yeah, it does protect a little bit, but the real and main purpose is to propagandize the buyer into accepting the proposition that both medium and data are precious. Why is it that data CDs routinely came packaged in stacks of 100? Because jewel cases are unnecessary and take a lot more space. Why the term "jewel"? They claim it's because the case design is a real gem, but they lie. No, it's to emphasize the supposed preciousness of the contents. What a total waste, when the data can simply be downloaded at a fraction of the cost of producing a run of CDs, each with a jewel case, and shrink wrapping or worse packaging them in those deliberately oversized stiffer and thicker plastic containers the primary purpose of which was to make it too bulky to be easily shoplifted, and shipping them all over the land. All that expense on mere packaging and containerization benefits neither the consumers nor authors, and adds to the plastic waste problem we have.

          • (Score: 1, Informative) by Anonymous Coward on Saturday August 26 2023, @01:34AM

            by Anonymous Coward on Saturday August 26 2023, @01:34AM (#1321904)

            Good start, but you lost me with your rant about jewel cases.

          • (Score: 1) by shrewdsheep on Monday August 28 2023, @09:50AM

            by shrewdsheep (5215) on Monday August 28 2023, @09:50AM (#1322151)

            I agree it should not be called jewel. Better pearl. You open the shell and you might find a pearl. More often than not there is nothing. And you understand life a bit better.

        • (Score: 2) by JoeMerchant on Friday August 25 2023, @10:42AM (1 child)

          by JoeMerchant (3937) on Friday August 25 2023, @10:42AM (#1321817)

          Simply put: crediting a tool with creation is missing contributions of the tool users and creators who should actually be credited with creation of the art works.

          If ChatGPT takes a user prompt and turns it into art, that is a collaboration between the creators of Chat GPT and the user who called out the prompt, no different than a sculptor who does a commissioned piece for their "prompt engineer."

          In 2006, I made an automatic chaos based art generation tool. All of its output is my art, not the IP of the 60 lines of code that does the generation over the period of a month.

          --
          🌻🌻 [google.com]
          • (Score: 3, Insightful) by Mykl on Sunday August 27 2023, @02:53AM

            by Mykl (1112) on Sunday August 27 2023, @02:53AM (#1322014)

            And if Stephen Thaler had just kept his mouth shut about his AI tool, he'd have been able to claim that the artwork was his. Not that too many people were likely to be all that interested in buying his artwork anyway.

        • (Score: 2) by Freeman on Friday August 25 2023, @01:56PM

          by Freeman (732) on Friday August 25 2023, @01:56PM (#1321835) Journal

          You would sue the owner of the AI. You certainly wouldn't sue a VW Bus, because it made a wrong left turn. Neither would you, in this case, sue the AI as it's just a construct. Someone made the stupid thing, they're the ones responsible. And/or whomever is the one that set it loose and/or directing it. I'm quite sure many various cases could be argued. What has already been said in court is that the AI is not sentient and can't be held accountable for it's "crimes" as it is just a piece of software. (At least I'm pretty sure it's already been said in court. If not, more popcorn may be needed.)

          --
          Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
  • (Score: 3, Insightful) by SomeGuy on Thursday August 24 2023, @11:53PM

    by SomeGuy (5632) on Thursday August 24 2023, @11:53PM (#1321773)

    AI, at least no AI that I have heard of yet, can really "create".

    If you look at one or two images spat out by one of these AI programs, it might look original. But look through a huge gallery of images, and you should see that there is very little originality. It is the same morphing patter over and over again with random objects thrown in.

    Same thing for AIs that create printed articles. When I read a news article or web page, I usually do so because I am looking for original, useful, informative, information. Someone, somewhere, has decided something is important enough to write about their experiences. If an AI article has that, it is mined from someone else's experience. Always. An AI will never have that experience, and can not even do original research.

    Some people have used AI for "programming". Type in a few lines of description, and it will pump out piles of code. Except, all of that code came from somewhere else. It might morph parts to fit your description, but it has not created anything truly unique. (Furthermore, if your business requirements are just a few lines of text but the code is a zillion pages, then you are using the wrong programming environment!).

    A so-called "AI", if used right, makes a great tool for PEOPLE to create with. But it doesn't "create" any more than a paint brush, pen, or keyboard.

  • (Score: 4, Insightful) by looorg on Thursday August 24 2023, @11:59PM

    by looorg (578) on Thursday August 24 2023, @11:59PM (#1321774)

    ... Future cases are likely to present more challenging legal questions "regarding how much human input is necessary to qualify the user of an AI system as an 'author' of a generated work" and "how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works," Howell wrote. But Thaler's case "is not nearly so complex."

    This is indeed the crux of the matter. How much human interaction is required? How many extra pixels do I have to put into the image to make it human, how many lines do I have to write of text or whatever. Can my "input" into the LLM be regarded as my input?

    Still I'm left wondering if you can just have a human goalkeeper for your AI. Sure Mr. Johnson is the author, artist, composer, coder ... of that product/unique-work. Here gimme my copyright now!

  • (Score: 5, Interesting) by maxwell demon on Friday August 25 2023, @04:34AM (5 children)

    by maxwell demon (1608) on Friday August 25 2023, @04:34AM (#1321787) Journal

    According to this ruling, photos should not be copyrightable if the photographed scene wasn't authored (e.g. nature photos) and the photographer did not do any significant post-processing. After all, the photographer did nothing but point the camera at the scene and press the shutter release. The photographer didn't actually create the image.

    --
    The Tao of math: The numbers you can count are not the real numbers.
    • (Score: 2) by bzipitidoo on Friday August 25 2023, @10:46AM

      by bzipitidoo (4388) on Friday August 25 2023, @10:46AM (#1321819) Journal

      I was wondering about animals. Elephants that paint don't get copyright protection on their paintings?

    • (Score: 2) by Thexalon on Friday August 25 2023, @11:56AM (1 child)

      by Thexalon (636) on Friday August 25 2023, @11:56AM (#1321823)

      IIRC, there's case law about this: Nature photographs are considered copyrightable because the photographer chose what to shoot, from what angle, with which equipment and with which techniques. And the copyright is very specific: You can't claim copyright on "any photograph of a wild elephant".

      --
      The only thing that stops a bad guy with a compiler is a good guy with a compiler.
      • (Score: 2) by maxwell demon on Friday August 25 2023, @06:53PM

        by maxwell demon (1608) on Friday August 25 2023, @06:53PM (#1321872) Journal

        And with AI, a human chose what prompt to use. And finding a good prompt isn't really easier than finding a good camera angle. Oh, and of course the human also chose which AI the image was made with.

        And no one claimed that you can get a copyright on "any image generated by an AI"-

        --
        The Tao of math: The numbers you can count are not the real numbers.
    • (Score: 2) by Freeman on Friday August 25 2023, @02:06PM (1 child)

      by Freeman (732) on Friday August 25 2023, @02:06PM (#1321838) Journal

      They are not according to the "famous"/"in-famous"/crazy monkey selfie case.
      https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute [wikipedia.org]

      In December 2014, the United States Copyright Office stated that works created by a non-human, such as a photograph taken by a monkey, are not copyrightable.[2] A number of legal experts in the US and UK have argued that Slater's role in the photographic process may have been sufficient to establish a valid copyright claim, though this decision would have to be made by a court.[3][4][5]

      Interestingly enough, the dude went through a lot of crazyness with trying to assert his right vs wikimedia. Though, he may have won out in the end. Probably would have been best had he not tried to press a lawsuit against wikimedia. For his own sanity and the likelihood that he wasn't ever going to be making tons of money on that single photo alone. Though, he did get quite a bit of money from it.

      In May 2018, Condé Nast Entertainment acquired the rights from Slater to make a documentary film related to the monkey selfie dispute. The project was being overseen by Dawn Ostroff and Jeremy Steckler.[55]

      --
      Joshua 1:9 "Be strong and of a good courage; be not afraid, neither be thou dismayed: for the Lord thy God is with thee"
  • (Score: 2) by darkfeline on Friday August 25 2023, @04:46AM (1 child)

    by darkfeline (1030) on Friday August 25 2023, @04:46AM (#1321791) Homepage

    It's good to keep in mind that copyright is purely a human construct, that is not universal across cultures or societies. It is designed specifically to preserve the livelihoods of some people that we've deemed at some point worth protecting, entirely similar to any benefits that may be provided to farmers.

    Do not confuse the legal/practical arguments with moral/philosophical ones.

    --
    Join the SDF Public Access UNIX System today!
    • (Score: 2) by ElizabethGreene on Friday August 25 2023, @07:45PM

      by ElizabethGreene (6748) Subscriber Badge on Friday August 25 2023, @07:45PM (#1321875) Journal

      Agreed. Copyright is a human construct and in no way universal across countries or states. Even the underlying ethical idea isn't universal; As an open-source advocate (albeit an insignificant one) I willingly forgo many of the privileges I have under US copyright law.

  • (Score: 2) by DadaDoofy on Friday August 25 2023, @08:55PM

    by DadaDoofy (23827) on Friday August 25 2023, @08:55PM (#1321881)

    If even one item of Copyrighted work is used in the AI's training without permission from the Copyright holder, it should be ineligible for a Copyright. If on the other hand, if everything used to train the model is owned (or licensed) by the entity that uses that AI model to generate the art, it should be eligible for a Copyright.

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