Can AI-generated art be copyrighted? A US judge says not, but it’s just a matter of time

American copyright legislation currently invokes a ‘human involvement’ criterion. But judging by the way smartphones have trivialised the ‘craft’ of photography, something has to give.

On Friday 18 August, a federal judge in the US rejected an attempt to copyright an artwork that had been created by an AI. The work in question is, to the untrained eye at least, no great shakes. It is called “A Recent Entrance into Paradise” and depicts a three-track railway heading into what appears to be a leafy, partly pixellated tunnel and had been “autonomously created” by a computer algorithm called the Creativity Machine.

In 2018, Stephen Thaler, CEO of a neural network firm called Imagination Engines, had listed Creativity Machine as the sole creator of the artwork. The US Register of Copyright denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.

Mr Thaler was not amused and issued a lawsuit contesting the decision, arguing that: AI should be acknowledged “as an author where it otherwise meets authorship criteria”; that ownership of copyright should then be vested in the machine’s owner (ie him); and that the register’s decision should be subjected to judicial review to clarify “whether a work generated solely by a computer falls under the protection of copyright law”.

At the moment it meets the “human involvement” criterion of the 1884 judgment and of contemporary copyright legislation. But my hunch is that its days are numbered. Indeed, even Judge Howell seems to agree. “We are approaching new frontiers in copyright,” she writes, “as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work.”

She’s right. And who knows? If he lives long enough, Mr Thaler may even get his copyright.



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