More than 100 days into the writers strike, fears have kept mounting over the possibility of studios deploying generative artificial intelligence to completely pen scripts. But intellectual property law has long said that copyrights are only granted to works created by humans, and that doesn’t look like it’s changing anytime soon.

A federal judge on Friday upheld a finding from the U.S. Copyright Office that a piece of art created by AI is not open to protection. The ruling was delivered in an order turning down Stephen Thaler’s bid challenging the government’s position refusing to register works made by AI. Copyright law has “never stretched so far” to “protect works generated by new forms of technology operating absent any guiding human hand,” U.S. District Judge Beryl Howell found.

The opinion stressed, “Human authorship is a bedrock requirement.”

The push for protection of works created by AI has been spearheaded by Thaler, chief executive of neural network firm Imagination Engines. In 2018, he listed an AI system, the Creativity Machine, as the sole creator of an artwork called A Recent Entrance to Paradise, which was described as “autonomously created by a computer algorithm running on a machine.” The Copyright Office denied the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection.

Thaler, who listed himself as the owner of the copyright under the work-for-hire doctrine, sued in a lawsuit contesting the denial and the office’s human authorship requirement. He argued that AI should be acknowledged “as an author where it otherwise meets authorship criteria,” with any ownership vesting in the machine’s owner. His complaint argued that the office’s refusal was “arbitrary, capricious, an abuse of discretion and not in accordance with the law” in violation of the Administrative Procedure Act, which provides for judicial review of agency actions. The question presented in the suit was whether a work generated solely by a computer falls under the protection of copyright law.

“In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No,” Howell wrote.

U.S. copyright law, she underscored, “protects only works of human creation” and is “designed to adapt with the times.” There’s been a consistent understanding that human creativity is “at the core of copyrightability, even as that human creativity is channeled through new tools or into new media,” the ruling stated.

While cameras generated a mechanical reproduction of a scene, she explained that it does so only after a human develops a “mental conception” of the photo, which is a product of decisions like where the subject stands, arrangements and lighting, among other choices.

“Human involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright,” Howell wrote.

Various courts have reached the same conclusion. In one of the leading cases on copyright authorship, Burrow-Giles Lithographic Company v. Sarony, the Supreme Court held that there was “no doubt” that protection can be extended to photographs as long as “they are representative of original intellectual conceptions of the author.” The justices exclusively referred to such authors as human, describing them as a class of “persons” and a copyright as the “right of a man to the production of his own genius or intellect.”

In another case, the a federal appeals court said that a photo captured by a monkey can’t be granted a copyright since animals don’t qualify for protection, though the suit was decided on other grounds. Howell cited the ruling in her decision. “Plaintiff can point to no case in which a court has recognized copyright in a work originating with a non-human,” the order, which granted summary judgment in favor of the copyright office, stated.

The judge also explored the purpose of copyright law, which she said is to encourage “human individuals to engage in” creation. Copyrights and patents, she said, were conceived as “forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent.” The ruling continued, “The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception.” Copyright law wasn’t designed to reach non-human actors, Howell said.

The order was delivered as courts weigh the legality of AI companies training their systems on copyrighted works. The suits, filed by artists and artists in California federal court, allege copyright infringement and could result in the firms having to destroy their large language models.

In March, the copyright office affirmed that most works generated by AI aren’t copyrightable but clarified that AI-assisted materials qualify for protection in certain instances. An application for a work created with the help of AI can support a copyright claim if a human “selected or arranged” it in a “sufficiently creative way that the resulting work constitutes an original work of authorship,” it said.

  • CrayonRosary@lemmy.world
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    1 year ago

    This doesn’t mean artists or movie studios can’t make AI creations and sell them. It just means they can’t stop people from copying and distributing them.

    If a well regarded artist uses generative AI to make art, then prints a single copy or a limited edition and signs them, they can sell them. Other people can copy it, but it won’t be the same. They won’t have the same value as the ones the artist produced, and they won’t be signed.

    • mosiacmango@lemm.ee
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      1 year ago

      The hollywood model is based on ownership of IP. Can you imagine if “Stranger things” was AI generated by Netflix, had a hit first season, then Disney released a second season with new actors? Meanwhile, CBS premieres “Stranger things : Miami?”

      It would be a mess and put their entire business model into a tailspin.

      This ruling may be the biggest bouy the writers have gotten so far in their strike.

        • mosiacmango@lemm.ee
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          1 year ago

          Holmes is very episodic by nature, which lends itself well to this structure. Even the ones that aim for an overaching story lean heavily into the “mystery of the week” for story structure.

          It probally would work for things like the above, but can you honestly see long form shows working in the same way?

      • some_guy@lemmy.sdf.org
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        1 year ago

        I think that in this scenario, Netflix could hold copyright over the idea and characters. Only the script would be out of reach. Lawyers would ensure that they hold onto the right bits to prevent this scenario.

        If I asked AI to write a story for a child, the whole thing is up for grabs. If I give it characters with specific traits and a story arc, that would still be mine. Only what the AI filled in wouldn’t be protected.

        • ristoril_zip
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          1 year ago

          And I’m sure that the government would grant copyright on the human-generated inputs to an imitative large language model so-called “AI.” Not sure it would be worth anything, though.

          Hell, I would bet that one might be able to copyright the database that was fed to an LLM, as long as it was independently generated & created by a human and not just a hoovering of a bunch of other authors’ works.

          The courts have this right, for sure. Presumably we can’t copyright the answer that comes out of a calculator when we hit the “=” button. But we can copyright all the formula manipulation and original thought that went into deciding which keys to press on the calculator, and possibly even the action of pressing the keys? Not sure on that last bit.

          • mosiacmango@lemm.ee
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            1 year ago

            The “creation” is algorithmic, and just like the calculator’s output that cannot be copyrighted. That’s based on “facts” of the universe, not “creation.”

            Is saying “i want a long form show about 80s teenagers in a small town, one of which has psychic powers, with an overarching dark force that opposes them” really going to be “creative” enough to protect a tv series worth of output?

            I think that falls apart in the same way that setting up a security camera once and then walking away doesnt give you permanent copyright over whatever it captures. There isn’t enough humanity in the creation to count it as “uniquely human.” The court seems to agree.

      • tabular@lemmy.world
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        1 year ago

        People could pay the studios that made the version of the show they wanted most. Instead of having no choice but to buy from whoever paid the most in the collectable copyright trading card game.

        Maybe I want the “Tron 3” Dreamworks would make, instead of Disney.

    • some_guy@lemmy.sdf.org
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      1 year ago

      I believe this is wrong. They can’t copyright an AI-generated script, but the performance and film based on a script is copyrightable.

      Think about this: can you copy and sell the Leonardo and Claire Danes Romeo and Juliet because Shakespeare’s work is in the public domain? No. You cannot.

    • Zeshade@lemmy.world
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      1 year ago

      Can they copy the artist’s ai generated art including the signature and sell that?

    • 🇰 🌀 🇱 🇦 🇳 🇦 🇰 ℹ️@yiffit.net
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      1 year ago

      If they can’t copyright it, everyone can just copy their shit and it’s not considered theft. I could buy that single, unique print, copy it and sell it myself more than once and make more than the dude who generated it. And it would be legal since it’s public domain and not copyrighted. Would it be the same as the original? No. Do most people care about that? Also no.

    • Millie@lemm.ee
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      1 year ago

      Actually, it has nothing to do with human creators at all. It means that AI can’t hold a copyright. But the person who wrote the article would have to actually be able to comprehend court documents to understand that, so here we are.

      • Pipoca@lemmy.world
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        1 year ago

        From the opinion:

        On the record designed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No.

        Given that the work at issue did not give rise to a valid copyright upon its creation, plaintiff’s myriad theories for how ownership of such a copyright could have passed to him need not be further addressed. Common law doctrines of property transfer cannot be implicated where no property right exists to transfer in the first instance. The work-for-hire provisions of the Copyright Act, too, presuppose that an interest exists to be claimed. … Here, the image autonomously generated by plaintiff’s computer system was never eligible for copyright, so none of the doctrines invoked by plaintiff conjure up a copyright over which ownership may be claimed.

        The irony is palpable.