A Recent Entrance to Paradise
Zarya of the Dawn
Comment


Generative artificial intelligence (AI) is a technology poised to disrupt how artwork is created, software is developed and text is written. The technological advancements in this space are giving rise to questions about copyright protections of works produced by generative AI systems. This article, part of a series on generative AI, focuses on output data.(1)

A Recent Entrance to Paradise

Can the output of a generative AI system be protected by copyright law? The use of AI in the creation of works is raising questions about the copyright eligibility of the output of these AI systems. In 2022, the Review Board of the United States Copyright Office considered a work of art entirely created by AI and decided not to grant copyright protection. The board stated:

the Office will not register works 'produced by a machine or mere mechanical process' that operates 'without any creative input or intervention from a human author' because, under the statute, 'a work must be created by a human being.'(2)

The board's decision is being challenged in the US District Court for the District of Columbia in the case Stephen Thaler v Shira Perlmutter and The United States Copyright Office.(3) The AI-generated image at issue, A Recent Entrance to Paradise, is shown in Figure 1.

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Figure 1: AI-generated image A Recent Entrance to Paradise

Recently, the plaintiff, Thaler, filed a motion for summary judgment, arguing that:

  • AI-generated works are copyrightable under the Copyright Act; and
  • he was the owner of the copyright in the work, either by common law property principles or, in the alternative, under the theory that ownership vested in him under the Work for Hire Doctrine.

Zarya of the Dawn

The issue of whether works produced by generative AI systems are afforded copyright protection recently came to the forefront when artist Kris Kashtanova became the first person to register a copyright for an AI-assisted work, a comic book called Zarya of the Dawn. However, subsequent to granting copyright protection, the Copyright Office expressed concern over whether there was substantial human involvement in the process of creation of the comic book and has since initiated the cancellation of the work.

Kashtanova's lawyer argued in a letter to the Copyright Office that the creative process of using generative AI is "essentially similar to the artistic process of photographer's selection of a subject, a time of day, and the angle and framing of an image". This action on behalf of the Copyright Office signals that artists may have to document their creative process when using generative AI tools. Specifically, filing works containing portions generated by AI may require proof that there was a certain degree of human authorship before copyright protection is granted.

Comment

Laws regarding the copyright eligibility of AI-generated art are not uniform around the world, and there are minimal guiding principles. In the United States, it appears there needs to be some human involvement, but the exact amount of human involvement is not defined. Elsewhere, the degree of required human involvement varies. The overall legal landscape for generative AI is still filled with many unanswered questions.

For further information on this topic please contact Justin E Pierce or Joseph B Cahill at Venable LLP by telephone (+202 344 4000) or email ([email protected] or [email protected]). The Venable LLP website can be accessed at www.venable.com.

Endnotes

(1) For the first article in this series, see "Copyright implications of generative AI: input data".

(2) Citing US Copyright Office, Compendium of US Copyright Office Practices, section 313.2 (third edition, 2021).

(3) 1:22-cv-01564 (2 June 2022).