Abstract
The rapid development of Artificial Intelligence ("Al") in recent years has spurred a plethora of discussions concerning ethical boundaries, government regulations, and more. Thaler v. Perlmutter highlights a unique one: the challenging question of if, and how, AI generated artworks may be copyrightable. The court denied copyright to plaintiff Stephen Thaler's work "A Recent Entrance to Paradise" generated by his AI system, "The Creativity Machine," holding that autonomously generated works cannot be copyrighted under the existing precedent. However, the court failed to answer, though it acknowledged, the pressing question as to the degree of human input necessary to copyright such artworks. This has been confirmed by the U.S. Copyright Office's (U.S.C.O.) protocols and further reflected in its recent copyright registration decisions such as Kashtanova's "Zayra of the Dawn" and Allen's "Théâtre d'Opéra Spatial."
The lack of explicit guidelines creates an ambiguous issue for the U.S.C.O. and Al artists moving forward as AI systems become increasingly available and more difficult to distinguish. While the U.S. has only made token commitments to address the issue, the European Union (E.U.) and China have been proactive in their Al regulation with each's respective Artificial Intelligence Act (AIA) and the Interim Measures for Management of Generative Artificial Intelligence Services (IMM GAIS). Though each lays out a sufficient baseline for U.S. legislators seeking to regulate AI and AI companies, both the E.U. and China conform to the status quo of failing to address this ambiguity.
The existing U.S. copyright framework, like that of the E.U. and China, is not developed with respect to AL. Its key components center around "authorship" and a more than a "de minimis" degree of "originality." All these concepts are based on human agency. But what is "human agency," and can "randomness" be considered a form of creative expression, a factor contributing to "human input?" Al-generated works, whatever the opinion, are "art" in the eyes of their artists.
Regardless of whether granting copyright is seen as deromanticizing human authors, or a promotion of creative expression, a solution is required. While legislation is a possible fix, the establishment of a U.S.C.O. national commission to make AI copyright decisions on a case-by-case basis is a more practical solution. This would ideally allow multiple viewpoints to be heard as well as adequately identify any likely present variations in Al-generated artworks. The U.S. has an opportunity to propagate its utilitarian-economic copyright model and set a global standard: a standard that would allow artists like Stephen Thaler the privilege of knowing their artistic innovations are, at the very least, fairly evaluated by governmental bodies like the U.S.C.O.
First Page
53
Recommended Citation
Adam
Pycior
AI Art and U.S. Copyright Decisions: What the U.S. Can Do Differently Than China and the E.U. To Efficiently Promote Balance Between AI Innovation and Copyright Regulation,
21
Loy. U. Chi. Int'l L. Rev.
53
().
Available at:
https://lawecommons.luc.edu/lucilr/vol21/iss1/5