Copyright Office Ruling Exposes Artificial Intelligence And NFT Issues – Intellectual Property – United States – Mondaq News Alerts

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At what point, if any, can Artificial Intelligence be considered
“human?” Who is responsible for the art that’s
created by technology? Who owns art predominately created by
computers? The U.S. Copyright Office tackled these questions in its
latest ruling regard…….

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To print this article, all you need is to be registered or login on Mondaq.com.

At what point, if any, can Artificial Intelligence be considered
“human?” Who is responsible for the art that’s
created by technology? Who owns art predominately created by
computers? The U.S. Copyright Office tackled these questions in its
latest ruling regarding artificial intelligence that will have
implications on art and NFTs going forward.

In short, the Copyright Office ruled that it will not offer
protection if it determines that a human being did not create a
piece of artwork. However, a deeper look into the rationale behind
the copyright application itself and its subsequent denials reveals
a deeper, more complex, web of questions that the Copyright Office
will have to face in the coming years.

The U.S. Copyright Office’s AI Ruling

In 2019,  Dr. Steven Thaler, founder and board member of
Imagination Engines, Inc., attempted to copyright a two-dimensional
piece of artwork titled “A Recent Entrance to
Paradise.” According to Thaler, this piece is a
“simulated near-death experience” in which an algorithm
reprocesses pictures to create hallucinatory images and a fictional
narrative about the afterlife. Critically, the computer is meant to
complete this work of art with minimal human
intervention. 

In Thaler’s initial copyright application, the author of
the artwork was identified as the “Creativity Machine,”
with Thaler listed as the claimant alongside a transfer statement:
“ownership of the machine.” In his application to the
Copyright Office, Thaler left a note stating that the artwork
“was autonomously created by a computer algorithm running on
a machine,” and he was “seeking to register this
computer-generated work as a work-for-hire to the owner of the
Creativity Machine.” In an August 12, 2019 letter, a
Copyright Office registration specialist refused to register the
claim, finding that it “lacks the human authorship necessary
to support a copyright claim.”

Thaler subsequently requested that the Copyright Office
reconsider its initial refusal to register the artwork, arguing
that “the human authorship requirement is unconstitutional
and unsupported by either statute or case law.” The Copyright
Office re-evaluated the claims and again concluded that the artwork
“lacked the required human authorship necessary to sustain a
claim in copyright” because Thaler had “provided no
evidence on sufficient creative input or intervention by a human
author in the Work.” The Copyright Office even went a step
further and stated that it would not “abandon its
longstanding interpretation of the Copyright Act, Supreme Court,
and lower court judicial precedent that a work meets the legal and
formal requirements of copyright protection only if it is created
by a human author.”

Thaler then submitted a second request for reconsideration,
arguing again that the Copyright Office’s “human
authorship” requirement is unconstitutional and unsupported
by case law. Specifically, in this second request, Thaler argued
that the Copyright Office “should” register copyrights
in machine-generated works because doing so would “further
the underlying goals of copyright law, including the constitutional
rationale for copyright protection.” In response to the
Copyright Office’s citation of case law addressing human
authorship, Thaler asserted that “there is no binding
authority that prohibits copyright for [computer-generated
works],” that copyright law already allows non-human entities
to be authors under the work made for hire doctrine, and,
ultimately, that the Copyright Office “is currently relying
upon non-binding judicial opinions from the Gilded Age to answer
the question of whether [computer-generated works] can be
protected.”

In response to Thaler’s second request, the Copyright
Office, once again, ruled against Thaler. A three-person review
board determined, as they had before, that Thaler’s
AI-created image did not include the element of “human
authorship” necessary for copyright protection. 

So, what does this mean for computer-created works going
forward? To illustrate this forward-looking question, let’s
delve into the past and take a look at a piece of cinematic art,
2014’s Ex Machina.

Ex Machina

In the 2014 movie, Ex Machina, a computer coder named Caleb
(Domhnall Gleeson) is invited by Nathan (Oscar Isaac), the CEO
inventor of a huge tech company, to be the “human
component” in a Turing Test that will determine the
capabilities of a robot named Ava (Alicia Vikander). In this movie,
Nathan creates the code to build Ava, and Caleb participates in the
test of Ava’s capabilities. In one scene, however, Ava
creates a drawing for Caleb. At this point in the movie, it’s
clear that Nathan created Ava, and it’s equally clear that
Caleb is a human component in bringing Ava to her final form.
Amidst all this clarity, however, is the unaddressed and unanswered
question: Who owns the artwork created by Ava? 

Is it Nathan, since he created the software, the code, and
physically built Ava? Is it Caleb, since the artwork was created at
his direction and for his benefit? Or is it Ava, since she
literally drew this piece of art? If we tackle this question as the
Copyright Office did, Ava would not be eligible for ownership of
this art based solely on the fact that, despite exhibiting
“human” traits, she is, in essence, a computer. As the
movie suggests, we need to evaluate how we understand our future
relationship with artificial intelligence, and a part of that
consideration is how this Copyright Office ruling will impact the
future of NFTs.

NFTs

Like the artwork created by the “Creativity
Machine,” many NFT art projects are generative. Generative
art, often referred to as “Coding Art,” is a process
where a person provides base layers of art and/or various codes and
algorithms that are then processed by a computer that outputs
artwork. The artwork used will generally be owned by the artist.
The code used will generally be owned by the software creator. But
the question remains: who owns the output of the computer?

While there has been recent case law on the matter (see
Rearden LLC v. Walt Disney Co., 293 F. Supp. 3d 963 (N.D. Cal.
2018) (acknowledging that some authorities “suggest that the
copyright protection afforded a computer program may extend to the
program’s output if the program ‘does the lion’s
share of the work’”)), it’s safe to say there are
still complex and unresolved issues in copyright law. Perhaps the
Copyright Office and other governing agencies will provide further
guidance on these ever-changing questions.

For the complete U.S. Copyright Office Review Board ruling,
see here.

For an overview of what works are copyrightable, see here.


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Source: https://www.mondaq.com/unitedstates/copyright/1168674/copyright-office-ruling-exposes-artificial-intelligence-and-nft-issues