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Lawyers are asking where to draw the line in light of the AI Copyright Guide

March 17, 2023
minute read

The US Copyright Office's latest guidelines on protecting works of art, music, and other media produced with the aid of AI raises more issues about human involvement that will probably require judicial resolution, according to lawyers.

If there is enough human authorship, AI-assisted works can be registered for a copyright, the agency stated in a policy statement released on Thursday. For instance, if an artist chooses, arranges, or modifies AI-generated elements in novel ways, they may be able to obtain a registration.

Yet, lawyers claimed that this leaves a gray area open to many interpretations.

As an artist, I could think, "Well, you've kind of given us a lot of nothing," according to intellectual property lawyer Vivek Jayaram, the company's founder. "How do we know what that line is, after all? ”

The agency also raised further issues in a legal environment that has only become murkier as generative AI applications like ChatGPT, Dall-E, and Midjourney have proliferated rapidly. Among these is the possibility of copyright protection for a prompt that is entered into a program.

Megan Bannigan, an IP partner at Debevoise & Plimpton LLP, observed that a whole group of problems could arise from the prompts' copyrightability alone.

In the end, it will probably be up to the courts to determine whether factual circumstances allow works aided by AI to be registered for copyright.

The copyright office is "really not in a position, in the way an adversarial litigation based system is to sift through the facts underlying some of these claims about exactly what kind of contribution a person has made," according to Ryan Abbott, an IP partner at Brown Neri Smith & Khan LLP.

Human Control

The advice from the Copyright Office comes roughly a month after the organization authorized a restricted copyright registration for the graphic novel "Zarya of the Dawn," an AI-assisted work by artist Kris Kashtanova.

Individual images created by the text-to-image program Midjourney were not registered, despite the comic's text and the work as a whole being registered.

In a statement, the Copyright Office highlighted that its most recent regulation "does not mean that technological tools cannot be part of the creative process," highlighting the use of applications like Adobe Photoshop to produce works that are eligible for protection.”

The degree to which the human had creative control over the work's expression and "really constituted" the traditional aspects of authorship, it ruled, is what mattered in each case.

It is challenging to understand the agency's procedural instructions, according to Abbott, who is representing computer scientist Stephen Thaler in a case against the Copyright Office to register an AI-created work.

He claimed that there are no sharp distinctions between Photoshop and the other generative AI systems, but rather a spectrum that includes varying degrees of human involvement.

AI Prompts

While some prompts may be sufficiently inventive to be protected by copyright, it does not imply that content developed from a copyrightable prompt is itself copyrightable, according to a footnote in the guidelines.

That begs the question of whether supplying instructions to an AI program is creative and original enough in and of itself to be covered by copyright, according to Bannigan.

"Can these prompts be protected by copyright, and what does that entail?" she inquired.

According to Bannigan, the stimulus would need to meet the standard for originality needed to copyright a piece of art.

She added: "Even though originality is a low bar, we're not going to see copyright protection given for simple inquiries that you ask ChatGPT or basic instructions that you give to Midjourney or Dall-E. The use of this technology by artists would be possible, but they would need to be very inventive in their search.

In some aspects, according to Jayaram, the Copyright Office resembles their strategy with regard to computer source code, in which the outcome isn't protectable but the underlying code is.

He added that even if an artist is successful in registering a prompt, they can have trouble enforcing the copyright.

"If you are an artist and you produce a work with protection under the prompt, you would essentially be keeping an eye out in society for additional other works that are substantially similar, but it's going to make enforcement incredibly difficult," he said.

‘Commissioned Artist’

The guidance also compares AI prompts to "instructions to a commissioned artist" who "makes the artistic decisions," according to attorneys.

Van Lindberg, a lawyer at Taylor English Duma LLP who represents Kashtanova, said, "In some ways, they're having it both ways.

The office doesn't understand that the "sole creativity in an AI-assisted task must necessarily originate from the human that employs the tool," he added.

Also, Lindberg made a distinction between user-generated images and texts that go beyond what is possible for human authors to create.

AI-assisted image creation is more similar to the work of a human photographer, according to him, because the human has control over the content, lighting, topic, and framing. "It's irrelevant whether the scene was created or not."

The Copyright Office's reliance on a US Supreme Court ruling from 1884, which stated that images are eligible for copyright as "representatives of original intellectual conceptions of the author," caught Bannigan's attention.

“Are modern cellphones and iPhones still accurate representations of the author's original intellectual concepts when we can shoot a picture by pressing a single button?" She questioned the distinction between entering a query into an AI generator and pressing a phone button.

“There is obviously some tension around,” she observed. "I wonder whether we'll see people raising objections to that in the future."

To the Courts

As a result of the uncertainty surrounding AI, lawyers said they are keeping a watch out for lawsuits that could assist clarify the Copyright Office's guidelines.

As per Jayaram, it is ultimately up to the federal courts to use this advice as a starting point and create some concrete regulations using examples.

The Copyright Office also disclosed on Thursday that it has developed a new AI webpage and will undertake a series of listening sessions. "We look forward to public discussion and comment throughout the coming months," the office stated in a statement.

According to Lindberg, it's feasible that the Copyright Office will modify its stance on the matter soon given the quick growth and uptake of AI.

“The law is not keeping up with technology in this particular area,” he claimed.

Cathy Hills
Associate Editor
Eric Ng
John Liu
Editorial Board
Bryan Curtis
Adan Harris
Managing Editor
Cathy Hills
Associate Editor

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