The use of AI has undoubtedly become more popular and prevalent in society. From the start, there has been tension between U.S. copyright law and AI.
The growing use of AI has sparked a lot of questions around copyright ownership and infringement. Some of these questions are still unanswered and have yet to play out in a U.S. court or through a U.S. statute.
However, there have been many recent developments in relation to the intersection of U.S. copyright law and AI. Below addresses some of the most pressing questions related to U.S. copyright law and AI.
What is a Copyright and Why is it Important to AI?
First, it’s important to establish what is a copyright and why it’s so crucial to AI. In the U.S., copyrightable work is an original work, fixed in a tangible means of expression, and meets the minimum creativity threshold.
Breaking down each component, a “work” is anything defined under the scope of the U.S. Copyright Act.
A “work” can be a book, recording, movie, painting, and even architecture.
A “tangible means of expression” means that the work is tangible and exists somewhere in the world whether that be on a canvas, digital file, or DVD.
The “work” cannot be in a person’s head, it has to exist in a tangible means.
To meet the minimum creativity threshold, there must be some sort of creativity put into the work. Meaning, the “work” is not a result of merely alphabetizing or numerically arranging data.
The Feist Case
The best example of failing to meet the minimum creativity threshold comes from the Feist Case. In the Feist Case, the U.S. Supreme Court held that a phone book was not copyright protectable because there was no creativity involved in its creation.
Copyright law essentially exists to encourage artists to create with an incentive to hold the exclusive right to monetize their work.
It would not make sense for a painter to paint a masterpiece only to have it copied and sold by another painter.
Copyright law gives the painter the exclusive right to sell their one painting, make more copies to sell, or sell a license of the painting.
AI and copyright intersect at the need to monetize “works.” AI can create designs, write songs, write movies, write books, and even design buildings.
Typically, humans create all those “works” and are able to monetize those “works” through owning the copyrights.
Now, AI is creating the “works” at the direction of humans. This creates a lot of questions around ownership and infringement. Can a human own work created by AI? Can AI infringe on others’ works?
Ownership of AI Created Works
Determining if it’s possible to own a U.S. copyright in AI created work is critical to the analysis of deciding if it’s worth using AI to create something.
As a starting point, it’s well established that non-humans cannot own U.S. copyrights. Thus, the copyright does not vest in the AI itself.
This concept was made popular in the monkey selfie case where a monkey picked up a photographer’s camera and snapped a selfie. In that case, a U.S. Federal Court decided the monkey could not own the rights to the photo it took because copyrights can only vest to humans.
If the AI cannot own a U.S. copyright, it’s a matter of if the right vests back to the human controlling the AI. The U.S. Copyright Office and a U.S. Federal Court has decided that, no, the copyright does not vest in the human controlling the AI.
The Monkey Selfie Case
In this decision, Steven Thaler generated a photo using AI and submitted an application for U.S. copyright protection with the U.S. Copyright Office. The U.S. Copyright Office rejected Thaler’s applications on the grounds “the work lacked human authorship.” Thaler appealed his rejection to a U.S. Federal Court and the U.S.
Federal Court agreed with the U.S. Copyright Office and upheld the rejection decision. Judge Howell stated “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.”
While Thaler’s claim was unsuccessful, he did raise some interesting points about AI and copyright. Most notably, Thaler compared AI generated work to photography. Humans push the button to snap a photo, but the camera is what is truly creating the work.
These situations do seem comparable. Judge Howell addressed this argument by stating “A camera may generate only a ‘mechanical reproduction’ of a scene, but does so only after the photographer develops a “mental conception” of the photograph.”
Lack of copyrights means the lack of an author’s exclusively right to monetize AI created works. Others are free to copy that work as they please.
If the purpose of creating a work is for monetization then using AI to create a work destroys that purpose. This is an important factor to consider for any person or business wanting to monetize AI created work.
AI and Copyright Infringement
It’s possible for AI to incorporate copyright work into its generated output. OpenAI even notes that its AI uses “large, publicly available datasets that include copyrighted works.”
This leads down a path of copyright infringement and determining the consequences for using copyright protected work in AI output.
There has not been a strong determination by the U.S. Court or the U.S. Copyright Office on the effects of AI of using copyright protected works. However, there are some recent cases filed that could lead to an answer soon.
On September 19, 2023, George R.R. Martin, John Grisham, and 17 other authors filed a copyright infringement lawsuit against OpenAI. The claim is that OpenAI’s AI pirated copyright protected ebooks and used the ebooks in the AI’s output.
Some OpenAI users went so far as to regenerate entire books and sell them on Amazon.com as non-human generated works. This case is still pending but it could lead to a pinnacle discussion about the liability individuals and businesses could face for creating AI that uses copyright protected work.
The Future of Copyright law and AI
There are still a lot of loose ends when it comes to copyright law and AI. However, there could be more clarity coming soon from the U.S. Copyright Office.
On August 30, 2023, the U.S. Copyright Office issued a notice of inquiry on U.S. copyright law and AI. The purpose of the inquiry is to determine if any administrative or legislative actions need to be taken in regards to copyright law and AI.
The U.S. Copyright Office will use its findings to advise Congress, courts, and create guidelines. It appears the U.S.Copyright Office is well aware of the growth of AI and is taking steps to issue guidelines and answer questions.