- Details
- By Professor Victoria Sutton
Guest Opinion. The U.S. Constitution provides for the protection of the arts, which has been implemented through statutory and regulatory protections for authors and inventors:
“promote the [p]rogress of . . . Arts”
——U.S. Const. art. I, § 8, cl. 8.
The entire quote from the Constitution reads, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” But it is the “promote the progress of . . . “ clause that is having difficulty with courts that do not see artificial intelligence as “progress” but that the arts are in need of protection from it.
“Artists” who are using artificial intelligence (AI) are a challenge to the copyright office. In response, the Copyright Office officially published a “statement of policy to clarify its practices for examining and registering works that contain material generated by the use of artificial intelligence technology for the use of AI in copyright applications,” effective March 16, 2023.
In August 2023, in a case where the applicant was denied copyright protection for his “autonomously” created artwork, the D.C. District Court held that the artificial intelligence function was the sole creator of the art it created. But because only a person can hold a copyright, this and any AI art is ineligible for registration.
The copyright applicant in this case, Thaler, filed an application to register a creation called “Entrance to Paradise” (see below) created by artificial intelligence which he identified as his “Creativity Machine,” which he included as a claimant. Thaler admits that the art “was autonomously created by a computer algorithm running on a machine” in his claim notes. He also writes in a note to the Copyright Office that he is “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine” which is Thaler.
In August 12, 2019, the Copyright Office sent Thaler a letter denying registration to Thaler finding that it “lacks the human authorship necessary to support a copyright claim.”
After a series of administrative appeals, the Office's Review Board issued a final determination affirming that the work could not be registered because it was made “without any creative contribution from a human actor.”
This week, on September 19, 2024, the D.C. Circuit Court heard an appeal from the D.C. District Court opinion last year, affirming the Copyright Office decision not to register the AI created work. The question before the court is whether the Copyright Office "correctly denied a registration application that claimed on its face that the work was autonomously generated by an AI [system]." But Thaler argued he had more to do with it than previously argued, confusing the judges panel about what question was before them, according to one account. It is likely that the lower court’s opinion will be affirmed, but we will see.
Art competitions
In 2022, Jason Michael Allen entered his AI created art using Midjourney in the Colorado State Fair category for digitally created art, and won the top prize, marking the first time AI had won in a competition.
The Copyright Office also rejected Allen’s application for copyright of his award-winning work, citing that there was more than a de minimis contribution from artificial intelligence (the office had asked Allen to provide which elements were his, and he declined).
Argument of Artists
Artists who create works of art argue that artificial intelligence functions are based on training they received by ingesting their works, thus using the work of others to make their own. However, it seems that is exactly what human minds do by being human and living in the world of art. They are inspired and so create based on their “training” of seeing the Masters who have painted and created great works of art, as well as those that are lesser known artists. Having a machine assist you in that process is human enhancement of a sort.
How far does the Copyright Act extend?
There is some question as to whether the Copyright Act extends to tribal lands, because the Act is silent on its application beyond the “states”. Native American scholar, Trevor Reed, argues that each Tribe should decide whether it applies within their jurisdiction. Tribes are also free to create their own copyright laws.
Further conflicts with AI in Indigenous Cultures
Where art is depicting sacred objects or ideas, the use of artificial intelligence to generate “aboriginal art” can be offensive and misappropriating indigenous culture. In this example, a law firm in Australia used this to show how indigenous art can be stolen for artificial intelligence art generation in a potentially offensive way:
The use of artificial intelligence can also be used to police copied, misappropriated or even stolen indigenous art. A Google image search can find similar images and artificial intelligence can enhance that function.
Artificial Intelligence for Artists Today
Many AI applications like two of them in the title of this article, are created for artists to use in the generation of art that can be used commercially or sold, but still not copyrighted.
Some competitions like the Colorado Fair competition where one of the first AI generated artworks won the digital division competition, have now required disclosure as to whether the artist used artificial intelligence in the creation of their entry in the competition.
Until we hear from the D.C. Circuit Court, these works will continue to be ineligible for registration at least to AI ownership because AI is not a person; and not to the human “prompt artist” because they did not create the work.
Ultimately, when the U.S. Congress catches up on the plight of artists and copyright, they may be able to fashion legislation for another category of AI generated art that has some limitations on its infringement just like human-generated art. “Prompt artists” will need to direct it not to “copy” other works, and that may be a challenge.
So do I own the Mona Lisa-like image created with artificial intelligence at the beginning of this article? Obviously it was trained on the original Mona Lisa created by Da Vinci in 1503-1506.
Yes, I own it but I am not the creator yet I can use it royalty free. It is not, however, eligible for copyright protection—yet.
To read more articles by Professor Sutton go to: https://profvictoria.substack.
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
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