U.S.Copyright Office denied to issue a copyright for an image created by an artificial intelligence software named Creativity Machine earlier this month, stating that "human authorship is a precondition to copyright protection."
The case will now be heard in federal court, since the owner of the AI program, Stephen Thaler, intends to submit an appeal, according to Ryan Abbott, a Los Angeles-based attorney representing Thaler.
"A Recent Entrance to Paradise" by Creativity Machine is part of a series Thaler has described as a "simulated near-death experience" in which an algorithm reprocesses images to produce hallucinatory visions and a fictional story about the afterlife. Most importantly, the AI is meant to do this with very little human assistance, which has proven to be a deal-breaker for the Copyright Office.
The Supreme Court has "uniformly limited copyright protection to creations of human writers," according to the ruling, and lower courts have "repeatedly rejected attempts to extend copyright protection to non-human creations," such as photos taken by monkeys.
In a number of countries, Thaler has put copyright and patent laws to the test. In patent applications, he has attempted to get DABUS, an AI, recognized as the inventor of two products. The applications were denied by the U.S. Patent and Trademark Office, the U.K. Intellectual Property Office, and the European Patent Office because the credited inventor was not human. Those rulings, as well as those in Australia and Germany, have been challenged in court.
However, an Australian judge ruled last year that AI-created inventions are patentable. Last year, South Africa granted Thaler a patent for one of the products, noting that "the invention was autonomously generated by an artificial intelligence."
The case comes at a time when artists are increasingly turning to artificial intelligence to assist them create artwork, including pieces created by self-driving cars. Abbott, a partner at the Los Angeles-based law firm Brown, Neri, Smith & Khan, highlighted that AI-produced artwork is generating considerable financial value, such as an AI-authored painting that sold at auction for $432,000 in 2018.
According to Ahmed Elgammal, founder of AI software business Playform, the Copyright Office's ruling shouldn't be a huge issue for artists using AI as a collaborative tool, despite its seemingly hostile posture toward AI-created artwork. Playform makes AI-enabled tools for artists; one of its products allows artists to submit thousands of their own photographs and have AI generate something new from them.
Elgammal said the Copyright Office's decision in the Creativity Machine case didn't surprise him because copyright regulations in the U.S. are designed to account for the human creative process.
"Artists are using AI as a tool [in] the same way [that] artists are using the camera," he said. "You cannot claim the camera is the artist. Artists are using cameras to create photographs, and that's how photographs get copyrighted."
