More than 100 days into the writers strike, fears have kept mounting over the possibility of studios deploying generative artificial intelligence to completely pen scripts. But intellectual property law has long said that copyrights are only granted to works created by humans, and that doesn’t look like it’s changing anytime soon.

A federal judge on Friday upheld a finding from the U.S. Copyright Office that a piece of art created by AI is not open to protection. The ruling was delivered in an order turning down Stephen Thaler’s bid challenging the government’s position refusing to register works made by AI. Copyright law has “never stretched so far” to “protect works generated by new forms of technology operating absent any guiding human hand,” U.S. District Judge Beryl Howell found.

The opinion stressed, “Human authorship is a bedrock requirement.”

The push for protection of works created by AI has been spearheaded by Thaler, chief executive of neural network firm Imagination Engines. In 2018, he listed an AI system, the Creativity Machine, as the sole creator of an artwork called A Recent Entrance to Paradise, which was described as “autonomously created by a computer algorithm running on a machine.” The Copyright Office denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.

Thaler, who listed himself as the owner of the copyright under the work-for-hire doctrine, sued in a lawsuit contesting the denial and the office’s human authorship requirement. He argued that AI should be acknowledged “as an author where it otherwise meets authorship criteria,” with any ownership vesting in the machine’s owner. His complaint argued that the office’s refusal was “arbitrary, capricious, an abuse of discretion and not in accordance with the law” in violation of the Administrative Procedure Act, which provides for judicial review of agency actions. The question presented in the suit was whether a work generated solely by a computer falls under the protection of copyright law.

“In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No,” Howell wrote.

U.S. copyright law, she underscored, “protects only works of human creation” and is “designed to adapt with the times.” There’s been a consistent understanding that human creativity is “at the core of copyrightability, even as that human creativity is channeled through new tools or into new media,” the ruling stated.

While cameras generated a mechanical reproduction of a scene, she explained that it does so only after a human develops a “mental conception” of the photo, which is a product of decisions like where the subject stands, arrangements and lighting, among other choices.

“Human involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright,” Howell wrote.

Various courts have reached the same conclusion. In one of the leading cases on copyright authorship, Burrow-Giles Lithographic Company v. Sarony, the Supreme Court held that there was “no doubt” that protection can be extended to photographs as long as “they are representative of original intellectual conceptions of the author.” The justices exclusively referred to such authors as human, describing them as a class of “persons” and a copyright as the “right of a man to the production of his own genius or intellect.”

In another case, the a federal appeals court said that a photo captured by a monkey can’t be granted a copyright since animals don’t qualify for protection, though the suit was decided on other grounds. Howell cited the ruling in her decision. “Plaintiff can point to no case in which a court has recognized copyright in a work originating with a non-human,” the order, which granted summary judgment in favor of the copyright office, stated.

The judge also explored the purpose of copyright law, which she said is to encourage “human individuals to engage in” creation. Copyrights and patents, she said, were conceived 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.” The ruling continued, “The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception.” Copyright law wasn’t designed to reach non-human actors, Howell said.

The order was delivered as courts weigh the legality of AI companies training their systems on copyrighted works. The suits, filed by artists and artists in California federal court, allege copyright infringement and could result in the firms having to destroy their large language models.

In March, the copyright office affirmed that most works generated by AI aren’t copyrightable but clarified that AI-assisted materials qualify for protection in certain instances. An application for a work created with the help of AI can support a copyright claim if a human “selected or arranged” it in a “sufficiently creative way that the resulting work constitutes an original work of authorship,” it said.

  • demlet@lemmy.world
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    1 year ago

    It’s not about being technically good or not for me, it’s a question of expression. A human can express internal thoughts and feelings. An AI, at least the ones we currently have, can only do an awkward imitation. There’s no intention or awareness.

    • Andy@slrpnk.net
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      1 year ago

      I think it can be art in the same way as photography: In both cases, the human influence is far less intentional than things which start with a blank canvas, and the ease of creation means that most examples aren’t art, but there are a few where someone happened to use the fullest understanding of their technical skill to capture a moment and a sensation of value. I wouldn’t say all photography is art, but I wouldn’t say that no photography is art, and I think generative images are similar.

      I support the idea of making it uncopywrightable. I think it is obviously dependent on so many creators that granting sole use to anyone seems inappropriate.

      • TopShelfVanilla@sh.itjust.works
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        1 year ago

        Oh, I don’t even really care about the copyright thing. I just hate for a fucking robot to lay around in it’s pajamas drawing pictures while I trade 13 hours of every day to a factory for the privilege of sleeing under a roof with some food for my family and to get to lay around drawing pictures like an hour of my week. This is defined distopia.

        • Andy@slrpnk.net
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          1 year ago

          I’ve still got hope. I see a sharply growing awareness of what you’re point out, and I think even the billionaires are a little spooked right now.

          As they should be! There’s a lot more of us, and we’re coming for their power!

      • demlet@lemmy.world
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        1 year ago

        Hmm, I think there can be a huge amount of intentionality behind photography. It’s really not about the representation, it’s about all the choices made. AI can represent a scene perfectly and still have no intentionality. Of course, at the extreme that gets us into thorny issues like solipsism. How can I know that anyone besides me has intentionality? Maybe everyone else is just a meat machine with no awareness at all. Or maybe everything at a certain complexity has intentionality…

          • demlet@lemmy.world
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            1 year ago

            Yeah, that’s fair. It’s hard to pinpoint what feels lacking with it, but it does feel lacking somehow to me. I guess for me there’s probably a tipping point where it’s no longer human enough. Like, just telling an AI to make a candy forest isn’t enough. But that’s a straw man argument in a way. Of course someone could put a huge amount of effort into getting an AI to render exactly what they’re imagining. In the end, it could be seen as just another medium. I have no doubt people are going to find incredible ways of utilizing it.

            • barsoap@lemm.ee
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              1 year ago

              to render exactly what they’re imagining

              Honestly… no. In practice it doesn’t work like that because while messing about and getting the AI got generate what you want you look at tons of adjacent stuff the AI comes up with which then influences what you want to see. And I bet that’s a thing that even the 4k nude stunning woman with (large breasts:1.6) faction experiences, it’s practically impossible to not enter a dialogue with the tool.

        • Andy@slrpnk.net
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          1 year ago

          I’ve done a bit of image synthesis, and I think the notion that it’s without intentionality is a bit of a myth.

          I wanted an image of a gorilla dressed in a polo shirt and khakis, so I prompted stable diffusion to generate some gorillas in a variety of poses, then drew a shirt on, which looked like an MS Paint drawing. Then, I ran it back through Stable Diffusion to make the crude shirt look photo realistic. I then cut the gorilla out and used it in a photo collage.

          I’m not using this example to claim that I’ve performed art or demonstrated any skill, but the final image is definitely the intentional result of trying to take a very specific image in my head and put it on the screen.

          • demlet@lemmy.world
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            1 year ago

            I made a similar point in response to someone else in the thread. I agree. It’s a very interesting situation to ponder. In some ways it’s just another medium. The intentionality is in the people trying to produce what they’re imagining via the AI. I will be curious to see what sorts of things people come up with over time.