Lawyers are a paranoid species, which I chalk up to some of the requirements of the job, but now even artists have cause to fear that artificial intelligence (AI) will replace them and render them obsolete. The latest AI project by Adam Basanta was to create an “art factory” using a computer system that churns out artworks by randomly generating abstract pictures.
The art factory creates the images and then these are run through another computer program for “validation” to see if the images are similar enough to human made art using a database. If the images are considered sufficiently similar to “real” artworks, then these are kept through the validation system, which results in about 20 to 50 images being saved out of the 1,000-plus images churned out per day by the art factory.
So far, these images have been displayed at an exhibition at the Ellephant gallery in Montreal, but have not been commercially sold. However, the art installation identified the original works of art that the computer validated as being substantially similar to, which has landed Basanta in a lawsuit for copyright infringement.
The lawsuit was commenced by Amel Chamandy, the owner of Montreal’s NuEdge Gallery, which includes the altered photographic image Your World Without Paper (2009), that was used to “validate” the art factory work at issue. The claims include copyright infringement and infringement of the trademark for the name Chamandy, which was identified as the source of validation alongside the AI created work in the exhibition at the Ellephant gallery. A copy of the image that is allegedly infringed appears here.
The legal issues raised by the copyright infringement case are complex and novel. The burning question is, can art generated by AI be considered protectible by virtue of copyright law, and if it is randomly created, would it be considered its own independently created original work or is it considered infringing? Should it be judged infringing just because a “validating” computer has assessed that it is substantially similar to an existing artwork?
If the work is not being sold or used for a commercial purpose, can the AI work be considered as falling under an exception to infringement such as “fair dealing” or “educational purposes?” These questions will be difficult to navigate for the Quebec Superior Court as it is a truly a first of its kind.
The closest example that comes to mind of a case involving copyright ownership by non-humans is the Monkey Selfie case in the United States (Naruto v. Slater 888 F.3d 418 (9th Cir. 2018)).
I am sure you remember this one, as it garnered a lot of media attention at the time. In that case, nature photographer David Slater claimed copyright in the images that had been taken by his camera equipment, but the photographs had actually been taken by Celebes crested macaques using his equipment. In August 2014 the photos were published on the blog Techdirt, without Slater’s permission, so he sued for infringement. The United States Copyright Office issued a statement in December 2014 that works created by a non-human, such as the monkey selfie, are not copyrightable.
Meanwhile, People for the Ethical Treatment of Animals (PETA) sued Slater upon publication of the images in a book, arguing that the macaques and not Slater should be attributed the copyright ownership and PETA designated as a trusteee to administer the proceeds of the book for the benefit of the endangered species.
The U.S. lower court dismissed PETA’s case in 2016, and ruled that a monkey cannot own copyright under U.S. law. In April 2018, the U.S. Appeals Court upheld the decision, affirming that animals cannot legally own copyright and expressing concerns that PETA was abusing the process of the courts to gain publicity. You have to admit, there are some great selfies involved. Hard to believe that this photo was not posed for:
The Monkey Selfie decisions are consistent with generally accepted views that original artistic works, as with other works protected by copyright, have to be the product of a creative process or “sweat of the brow” and therefore human made.
However, the advent of AI in all its forms is going to give humans a run for their money, not only in the creation of original artistic works, but potentially in the creation of music and other works that would traditionally be subject to copyright protection in the works if these were created by humans. AI technology has shown itself adept at many functions previously requiring human input and is rapidly evolving.
When considering new technology, the law is slow to evolve and legislators cannot keep pace with the advances. One can certainly predict that this case is likely only the first of many to test the theory of ownership to intellectual property (IP) created by AI. In some ways, the situation is not dissimilar to the Harvard Mouse case, where the courts held that we could not patent a living species. CRISPR, a technology that has been used to functionally inactivate genes in human cell lines and other cells, further raises the spectre of creating genetically modified plant, insect, animal and human species as well, and ethical debates concerning its applications are already challenging our medical world.
There are sure to be attempts to use IP to lay claim to new genetically modified organisms or GMOs.
With the advent of AI, the practice of IP law has never been more challenging or more interesting.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
