The Ongoing AI Authorship Debate.

Artificial Intelligence (“AI”), while not new, has become the new darling of the technology world. AI-generated works of art have ignited a firestorm among legal professionals. Why? Because traditionally copyright protected works of art or authorship were created and owned by human beings. Now, the lines appear blurred. In fact, sometimes it’s difficult to determine with the naked eye if a work is created by a human or by a machine. Be that as it may, the U.S. Copyright Office (the “Copyright Office”) remains firm in holding that copyright protected works can only be owned by a human being.  As does the U.S. Patent and Trademark Office (the “USPTO”) regarding patents.

Stephen Thaler and AI.

That said, it has not stopped entrepreneurs such as Stephen Thaler from attempting to push the limits of the law. In a recent patent case, decided in August of 2022, the question presented was whether an AI software system could be listed as the inventor on a patent application. Rather than getting into the “metaphysical” issue of the “nature of invention or the rights, if any,” the United States Court of Appeals for the Federal Circuit simply looked to the statute. The Patent Act defines “inventor” as limited to natural persons; that is, human beings.”  Consequently, Stephen Thaler’s patent applications were denied registration. 

Changing Rules?

Should the rules be re-written considering this new technology world we live in? Should the rules impose limits on AI-generated input? Should the law make allowances for human input even in light of AI contributions? Ultimately, should AI-generated works or art and authorship receive copyright protection? If so, how should the law determine attribution and ownership when AI is involved?

Controversial Case Award-Winning Art Piece 

In 2022, Jason Allen (“Allen”) filed an application to register a copyright for a work named “Théâtre D’opéra Spatial.” The significance of his work was that it was first AI-generated content to win the Colorado State Fair’s annual fine art competition.

Allen filed an application to register his work with the Copyright Office. Initially he never revealed that much of the work was created by a machine. When asked for additional information, he disclosed that information. He was denied a registration because the Copyright Office held that the work contained “more than a de minimis amount of AI-generated content.” Consequently, his work did not meet the human requirement for copyright ownership, thus registration.

Allen appealed to the Copyright Review Board and was asked to disclaim the content produced by technology. He refused again and the Board held in favor of the Copyright Office. Allen’s argument was that he created 624 inputs into the AI program, which meant he entered customized instructions for the computer system to respond to. He then contacted Midjourney to refine the final output. In addition, Allen touched up the material that AI through Midjourney produced. Despite Allen’s contribution, the Copyright Office argued that Midjourney still interprets Allen’s inputs in the way the system perceives it. Without human-level comprehension, Midjourney cannot identify inputs as precisely as a human being would. The system creates a number of drafts until the human is satisfied. That was the basic reason for the denial of a registration. Consequently, the Copyright Office determined that the initial image was primarily generated by technology, not Allen.

Your thoughts?

Francine D. Ward
Attorney-At-Law, Author, Speaker

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