EXTENDING AUTHORSHIP PROTECTIONS THROUGH COPYRIGHT LAW TO AI-MACHINES

Artificial intelligence research has made great strides since the term was first coined in 1956.[i] Today, in an era of “big data,” AI technology thrives in industries that rely on collecting information at rates and capacities too large for humans to process efficiently. These industries include banking, marketing, and entertainment, to name a few.[ii] However, AI is not confined to low-level data crunching; developers have already programmed AI machines to generate machine-made film scripts,[iii] music,[iv] works of art,[v] and more. In 2019, the Warner Music Group signed a contract with Endel, an audio startup, to produce 20 albums using its core algorithm.[vi] In 2018, Christie’s auctioned off Portrait of Edmond Belamy for $435,500.[vii] The portrait was created by a two-part algorithm method and was the first AI-generated work of art sold in an auction house.[viii]

From a technical perspective, these advancements are inspiring and serve as powerful examples of how much these machines are capable of.[ix] However, from a legal perspective, AI’s influence on creation and innovation raises puzzling, divisive questions.[x] One of the more challenging queries is how copyright law should respond to this surge of creative works that originate from automated creators.[xi] A heated debate has risen amongst scholars concerning whether AI can be an author in the sense that the work they generate is protected by copyright law.[xii] While this debate is far from its resolution, a recent decision by the Copyright Review Board bodes ill for the proponents of AI authorship.[xiii]

In November of 2018, Stephen Thaler filed an application with the Copyright Office to register a copyright claim in a two-dimensional artwork titled “A Recent Entrance to Paradise.”[xiv] The artwork was created by an AI machine called DABUS and is the product of Thaler’s “snipping of connections within DABUS to simulate a dying brain.”[xv] Ultimately, the registration specialist denied the registration claim, because it lacked human authorship.[xvi] Thaler requested reconsideration, but again the Office denied the claim, citing a lack of human authorship.[xvii] Unphased, Thaler filed a second request for reconsideration, renewing many of the same arguments made in his previous requests.[xviii]

The thrust of Thaler’s argument for AI authorship protection was that the human authorship requirement was unconstitutional and unsupported by case law.[xix] In support of this contention, Thaler advanced public policy arguments and maintained that 1) copyright jurisprudence has never formally prohibited copyrights for AI, 2) the work made for hire doctrine allows for non-human authors, and 3) the Copyright Office relies on outmoded, non-binding notions of authorship.[xx] The Board accepted none of Thaler’s arguments, and their opinion provides a formidable hurdle that Thaler and his supporters must overcome.

From the beginning, the Board persisted in the view that copyright law protects only those works which are “the fruits of intellectual labor” and “are founded in the creative powers of the human mind.”[xxi] Therefore, to prevail in his copyright claim, Thaler had to either show the Board that “A Recent Entrance to Paradise” was the product of a human or persuade the Board to expand the notion of authorship past what has traditionally been protected by copyright jurisprudence.[xxii] To support the application of the rule, the Board relied on several authorities, namely the Copyright Act, the Supreme Court, lower courts, and federal agencies.[xxiii] Each source reiterated the long-held belief that copyright protection does not cover non-human expression, and in the face of this authority, Thaler’s arguments were unable to succeed.

Despite continuing defeat, the debate regarding human authorship rages on. Like Thaler, those who believe in extending the protection primarily rely on policy arguments.[xxiv] One author has called for copyright policymakers to drop their “romantic notions of creativity and innovation” and to respond to this new wave of creation in a way that ensures that progress and creativity are not further impeded.[xxv] Others hold the idea that copyright protection belongs to the humans who exert control over these AI products.[xxvi] And still valid are those who believe that AI-generated works are purely mathematical creations, derivates of true art created by humans.[xxvii]

The arguments for and against AI-authorship are varied and will continue to develop as AI continues to play a part in creative landscapes. While it is currently unclear whether AI machines will even “enjoy” the protections afforded by copyright law, the field has much to look forward to as creators like Stephen Thaler continue to carry the gauntlet for the systems they create and grow.[xxviii]

[i] Rockwell Anyoha, The History of Artificial Intelligence, Harvard Univ.: Special Edition on A.I. (Aug. 28, 2017), https://sitn.hms.harvard.edu/flash/2017/history-artificial-intelligence/.

[ii] Id.

[iii] Tal Dadia et al., Can AI Find its Place Within the Broad Ambit of Copyright Law?, 10 Berkeley J. Ent. & Sports L. 37, 37 (2021).

[iv] Daryl Lim, AI & IP: Innovation & Creativity in an Age of Accelerated Change, 52 Akron L. Rev. 813, 815 (2018).

[v] Christie’s, Is Artificial Intelligence Set to Become Art’s Next Medium? (Dec. 12, 2018), https://www.christies.com/features/A-collaboration-between-two-artists-one-human-one-a-machine-9332-1.aspx.

[vi] Amy X. Wang, Warner Music Group Signs an Algorithm to Record Deal, Rolling Stone (Mar. 23, 2019, 8:00 AM), https://www.rollingstone.com/pro/news/warner-music-group-endel-algorithm-record-deal-811327/.

[vii] Christie’s, supra note 5.

[viii] Id.

[ix] Lim, supra note 4. (describing that some scholars view AI as the focal point of the fourth industrial revolution, begging the question how far AI will propel economic growth and innovation.)

[x] Id.

[xi] See Atilla Kasap, Copyright and Creative Artificial Intelligence (AI) Systems: A Twenty-First Century Approach to Authorship of AI-Generated Works in the United States, 19 Wake Forest J. Bus. & Intell. Prop. L. 337 (2019); Xiao Wang, AI Output: A Human Condition that Should Not be Protected Now, or Maybe Ever, 20 Chi.-Kent Intell. Prop. 136 (2021); Daryl Lim, AI & IP: Innovation & Creativity in an Age of Accelerated Change, 52 Akron L. Rev. 813, 815 (2018).

[xii] See Xiao Wang, AI Output: A Human Condition that Should Not be Protected Now, or Maybe Ever, 20 Chi.-Kent Intell. Prop. 136 (2021)(arguing against providing protection for AI outputs through copyright law); Daryl Lim, AI & IP: Innovation & Creativity in an Age of Accelerated Change, 52 Akron L. Rev. 813, 815 (2018) (arguing that it is possible for copyright laws to embrace AI authorship).

[xiii] Copyright Review Board, Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise, 7 (2022).

[xiv] Id. at 2

[xv] Andre Karpan, Art Not Made By Humans Can’t Be Copyrighted, Office Says, Lexis+ (Feb. 18, 2022, 9:05 PM), https://plus.lexis.com/newsstand#/article/1466651?crid=98e649b9-f590-414a-988d-13e65fdd8371.

[xvi] Copyright Review Board, supra 13 at 2.

[xvii] Id.

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id. at 2.

[xxii] Copyright Review Board, supra 13 at 2.

[xxiii] Id. at 3-5.

[xxiv] See generally Daryl Lim, AI & IP: Innovation & Creativity in an Age of Accelerated Change, 52 Akron L. Rev. 813, 815 (2018).

[xxv] Id. at 816-817.

[xxvi] Xiao Wang, AI Output: A Human Condition that Should Not be Protected Now, or Maybe Ever, 20 Chi.-Kent Intell. Prop. 137 (2021).

[xxvii] Tal Dadia et al., Can AI Find its Place Within the Broad Ambit of Copyright Law?, 10 Berkeley J. Ent. & Sports L. 37, 38-39 (2021).

[xxviii] Stay up-to-date on Stephen Thaler’s continuing legal battles through this website: https://artificialinventor.com/. Thaler is fighting for patentability of AI-generated inventions and work both in the US and abroad, and has numerous pending applications and appeals.