
Who should own the copyright of AI-generated art? - aimadeart
https://aimade.art/blogs/news/who-should-own-the-copyright-of-ai-generated-art
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dwheeler
In the US this question is fairly settled.

The U.S. Copyright Office has already declared that if it's generated by a
machine, without any creative input or intervention from a human author, then
the work is NOT eligible for copyright at all.

They believe that "The copyright law only protects “the fruits of intellectual
labor” that “are founded in the creative powers of the mind.” Trade-Mark
Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to “original
intellectual conceptions of the author,” the Office will refuse to register a
claim if it determines that a human being did not create the work. Burrow-
Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). ... the Copyright
Act protects “original works of authorship.” 17 U.S.C. § 102(a) (emphasis
added). To qualify as a work of “authorship” a work must be created by a human
being. See Burrow-Giles Lithographic Co., 111 U.S. at 58. Works that do not
satisfy this requirement are not copyrightable. The Office will not register
works produced by nature, animals, or plants.... Similarly, the Office will
not register works produced by a machine or mere mechanical process that
operates randomly or automatically without any creative input or intervention
from a human author."

I'm quoting chapter 300 here:
<[https://www.copyright.gov/comp3/chap300/ch300-copyrightable-...](https://www.copyright.gov/comp3/chap300/ch300-copyrightable-
authorship.pdf>) of the Compendium of U.S. Copyright Office Practices here
<[https://www.copyright.gov/comp3/>](https://www.copyright.gov/comp3/>). The
compendium is the "governing administrative manual for registrations and
recordations issued by the U.S. Copyright Office." In short, for the US, this
is an extremely authoritative source.

A future US court ruling or law change could change this, of course, but I
sure wouldn't bet on it. The US Copyright Office has lawyers who specialize in
this area, have clearly stated their position, and they are citing specific
laws and court cases to justify their position. Also, in most cases you can't
go forward with a copyright claim without registration (though you can
register after-the-fact); if the US Copyright Office won't allow registration,
you'll have a really challenging time even _starting_ a court case.

I'm sure there are edge cases and complications. But the essence is only
"unsettled" if you don't look for the existing rulings. A Google search will
find actual answers from credible, authoritative sources. Sure, courts and
Congress could change it, but it'd require a significant change.

While this information is specific to the U.S., copyright is similar enough in
other jurisdictions that there's a decent chance that other jurisdictions
would come to the same conclusion. European law in particular has a number of
similarities in this area; I'd love to hear from those with more background in
other jurisdictions.

Disclaimers: I am not a lawyer, and this is not legal advice.

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ddlutz
Does tuning the hyperparameters for the IA count as creative input or human
intervention?

~~~
dwheeler
I don't know if hyperparameters count as being adequately creative, and
perhaps that is unsettled. I suspect you would have to have an argument about
how creative the process of tuning parameters is. It might be very fact-
specific, IE perhaps some hyperparameters might count as creative and others
might not. I realize that is not very satisfying.

The US Copyright Office says: "The crucial question is “whether the ‘work’ is
basically one of human authorship, with the computer [or other device] merely
being an assisting instrument, or whether the traditional elements of
authorship in the work (literary, artistic, or musical expression or elements
of selection, arrangement, etc.) were actually conceived and executed not by
man but by a machine.” U.S. Copyright office, Report to the Librarian of
Congress by the Register of Copyrights (1966)."

While the dividing line is fuzzy, it is clear that as soon as you're claiming
that the art was generated by AI, you are fighting an uphill battle to get a
copyright registered.

Again, I am not a lawyer.

~~~
Thiez
I think it is perhaps interesting to compare to photography. There a human
picks the initial parameters (position, angle, lens, time of day), presses a
button, and then the camera (a device) does all the work. It is not
controversial that photographers have a copyright on their work.

~~~
dwheeler
You're right, it is not controversial today that photographers have a
copyright on their work. Which is why the monkey selfie is so important. In
the monkey selfie case, a photographer did set up the equipment, which means
that some of the parameters were indeed established by a human. However, the
monkey actually created the picture, including the timing and body placement.
The copyright office has determined that the work could not be copyrighted.

Which leads to the conclusion that at least in some cases,a human doing some
setup is not enough to grant a copyright.

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BorisTheBrave
See this article that covers a recent case of this, and goes into much more
depth: [https://www.gizmodo.com.au/2020/05/the-internet-furry-
drama-...](https://www.gizmodo.com.au/2020/05/the-internet-furry-drama-
raising-big-questions-about-artificial-intelligence/)

~~~
webmaven
Thanks, that's a _much_ more informative link.

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nurettin
The list is nonsensical. If there is a copyright, it is owned by whoever is
running the software. The legal owners. Any program with emergent properties
could technically produce output that could be construed as art. Such programs
have been around since decades. It isn't like we are on the verge of some new
era where we have to consider computers or algorithms as equals or peers that
deserve respect.

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imiric
I suspect this mentality will not age well. We very well may be close to
discussing robot rights, and the answer to this question in 50 years might be
simple: the machine owns the copyright.

~~~
nurettin
Thanks for the comment, Elon

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Kuinox
Funny to see that there must be a copyright, author didn't tought one option:
nobody own the copyright.

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cpitman
That is the last option in the list, in the article.

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Kuinox
Author modified it. Proof:

[https://web.archive.org/web/20200613105427/https://aimade.ar...](https://web.archive.org/web/20200613105427/https://aimade.art/blogs/news/who-
should-own-the-copyright-of-ai-generated-art)

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kazinator
Running a program which generates art is no different from clicking the
shutter on a camera, or throwing paint on a canvas randomly (non-repeatable
physical process generates the image.

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nfoz
Yeah people get too caught up in the marketing-hype of AI as if it's a magical
thinking lifeform. So far, it is not. It's a device, a tool. Devices don't own
things.

~~~
visarga
The point is not that devices don't own things but that the owner of the
device / creator of the software can't copyright its outputs in his name.

Generating art costs money - electricity to train models and rent/buy the
hardware, requires expertise in neural nets, tons of training data from the
public domain or privately created, lots of experimenting and fiddling with
the parameters, manual curation of the output ...

why should the human who invested all this work not be entitled to the
copyright?

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juancn
Who should own the copyright of brush-generated art?

The question is moot. The tool cannot own the copyright.

The AI is no different than a brush or a hammer or a screwdriver.

~~~
mkl
Collage may be a better analogy than paint. An artist can make an image with a
collage of bits of other artists' works, in much the same way that a
generative network can make an image out of image elements derived from other
artists' works.

The question is not whether the "AI" has any ownership, but whether the
original artists do, or whether the programmers do, or whether the people
selecting training images do, or whether the person selecting a final artwork
out of a mass of inferior generated images does.

~~~
jxf
> An artist can make an image with a collage of bits of other artists' works,
> in much the same way that a generative network can make an image out of
> image elements derived from other artists' works.

That's not a good analogy because a human is involved. The entire point here
is whether living entities other than persons can have copyright, and the
answer (in the US) is no.

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gfxgirl
The AI didn't write itself. A human chose the algorithms, the training data,
the goals, etc....

~~~
visarga
Apparently that's nothing. As if all this AI generative art is trivial.

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drannex
Who owns the product of an arthouse? Of a manufacturing plant? Of a farm?

The creators and/or owner of the algorithm own the product.

If they use it to train with other artists creation, that is the same as
taking inspiration. If they release the alg open source, then its the same as
any product that makes things, the maintainer of that instance owns the
production of anything created from it.

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chrismcb
No one. Copyright requires some creativity. If it was generated, there is no
creativity.

~~~
Rochus
That's not the point. Copyright law - at least the European versions of it -
requires a human creator. So the output of an algorithm is not protected under
copyright law in general, even if the output appears to be "creative". If the
output includes parts of a pre-existing work by a human creator, then it might
be subject to copyright law, but in favour of the creator of the pre-existing
work.

~~~
chrismcb
Of course the output of an algorithm is covered, if there is creative input.
Otherwise nothing generated from photoshop would be protected. And creativity
is the point. As a previous post mentioned, "creative powers of the mind"

~~~
Rochus
When you edit images in Photoshop you are the actor and it is your (hopefully)
creative result.

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pndy
I believe this could depend on the complexity of AI. If we're talking about _'
real'_ artificial intelligence that is self-aware and can mimic human
thinking, can interact with human beings as we do with one another then
perhaps at first we should recognize AI as natural person or entity, or legal
person and grant them necessary rights; which later would lead to all sort of
legal issues including copyrights. But if we're talking about AI that is just
an algorithm that automates tasks then perhaps its creators should hold the
rights or the work should become part of public domain.

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Rochus
Copyright laws of most European countries specify that only works created by
human beings can be afforded copyright protection. The same seems to apply to
current US laws (which I'm not familiar with in detail). In UK and Ireland it
is possible in principle that computer generated works can be copyrighted by
the person responsible for the creation of the work. So it depends on the
country. Notwithstanding the above, a work may of course be sold, in this case
by the owner of the printed sheet of paper.

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quelltext
I was curious and read that linked wikipedia article on the monkey selfie,
which actually makes it clear that US law pretty much does have an answer to
the question whether an animal can be a copyright owner.

The actually interesting part is the fact that these photos/selfie situation
were set up specifically by a photographer with their equipment.

That is actually the relevant (to AI) portion in all this. If someone sets up
all the right pieces but then has a subject or generally "something" else
cause the actually creation of the artwork the lines get really blurry.
Hypothetically if you set up an elaborate set of machinery guiding an
animal/machine/human to paint a picture it wouldn't otherwise be painting,
e.g. think elephant with brushes/paint on trunk walks through a guided maze of
a huge canvas, the coordinator would not have copyright (by the logic of the
monkey case).

P.S. While I sympathize with the photographer, the level of butthurt and
entitlement is just rich:

> Slater was unable to travel to the July 2017 court hearing in the United
> States for lack of funds and said he was considering alternative careers as
> a dog walker or tennis coach.[52] "This would be a new venture for me. It
> would pay peanuts, but at least it would be more than photography. I am just
> not motivated to go out and take photos any more. I've had outlays of
> several thousand pounds for lawyers, it is losing me income and getting me
> so depressed. When I think about the whole situation I really don't think
> it's worth it."[52] Slater added, "Everything I did to try and highlight the
> plight of the monkeys has backfired on my private life. I've had my life
> ruined."[52]

They made an initial investment, made good on it, then decided to sue
Wikimedia without the necessary funds. This is a very special case and not at
all related to the viability of the wildlife photographer profession. Nothing
about this means the photographer has to abandon their career and start
walking dogs instead.

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12xo
The question is: Who would pay money for art made by machine?

~~~
visarga
Whoever wants something very specific that is still hard to
reproduce/generate.

In the photography industry there are billions of free images all over the
internet, who's going to pay for the next image? Only those who want something
specialised that can't be had for free.

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shmerl
The program if it's on the level of human mind, or no one otherwise. It surely
shouldn't be the creator of the program in either case.

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cottonseed
The algorithm, obviously.

~~~
webmaven
I'm pretty sure that that's covered under the option of "the machine itself",
as that is a computer running an instance of the algorithm.

I'm actually a bit surprised that this legal territory is so poorly explored,
I would have assumed that at least there would have been challenges, lawsuits,
and court cases on the validity (and ownership) of copyright for procedurally
generated artwork long before now (of course, this would still leave as an
open question the issue of whether such a work infringes on works an AI was
trained on).

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sandinmytea
The AI.

A rights!

