Application of artificial intelligence in art and implications for copyright | Caldwell Intellectual Property Law
Artificial intelligence and social roles
The use of artificial intelligence (“AI”) is expanding into aspects of our lives. From shopping to healthcare, everyone has benefited from the implementation of such technology. Artificial intelligence is a machine’s ability to exhibit human-like behavior in areas such as learning, thinking, and creativity. Should machines play such a dominant role in our lives? What are the legal implications of such use? Other blog posts and websites have addressed these and other questions.
The arts have also been fertile ground for research into the use of artificial intelligence. It’s about the fundamental question: Who is the artist? The programmer? The computer that generated the work? Is the computer-generated work creative or original enough for copyright registration under copyright law? Can a computer be an artist? There is no easy answer to this, and artists, computer engineers, and copyright offices around the world also wrestle with these questions.
AI-generated artistic works raise the question of who owns the intellectual property rights to the work. In the United States, copyright law is based on the Constitution¹. The drafters of the Constitution assumed that authors are human beings, not machines, although the Constitution clearly fails to make that distinction. the New Oxford American Dictionary defines an “artist” as “a person who makes paintings or drawings professionally or as a hobby” or “a person who practices any of the creative arts, such as a sculptor, writer, poet or filmmaker”². In addition, a “person” is defined as “a human being considered as an individual”³.
Copyright, for example, raises questions about the originality and creativity of the work. In the United States, for copyright protection, the work must “an original workS of authorship enshrined in every tangible means of expression”⁴. An example of a type of artificial intelligence is machine learning. The idea behind machine learning is that it receives training data to learn and make predictions. Training data can consist of the sample output data and the corresponding sets of input data that affect the output. The training model runs the input data through the algorithm to correlate the processed output with the example output. In general, there are two types of learning: supervised and unsupervised learning. Supervised learning occurs when the training data already contains both the input and output values. Unsupervised learning involves identifying patterns in the data where there is no preset output.
Use of AI in music
An example is the use of artificial intelligence in the completion of Beethoven’s unfinished 10th Symphonyth Symphony⁵. The 10th symphony not only used recordings of Beethoven, but also pieces of music that might have influenced Beethoven at the time, including pieces by Johann Sebastian Bach. The artificial intelligence repeatedly reassembled fragments from the existing pieces of music, superimposed them and mixed them. In the end, this resulted in a score for Beethoven’s 10th “AI” symphony by the composer Walter Werzowa and the Beethoven Orchestra Bonn.
As in the 10thth Example symphony: AI music is based on the data collection of pieces of music, symphonies and operas – created by another party. For example, a machine learning system can use known music by a composer to train a machine learning model to potentially produce new musical works. Originality could become an issue; However, how these pieces are put together using an algorithm can show the originality of this newly created piece. The algorithm itself, written by a person, can also be the subject of copyright protection.
Use of AI in literary works
Should it be possible for an author to obtain copyright protection for a work created with the help of artificial intelligence? As mentioned, copyright requires an identifiable human. The Copyright Office requires not only an identifiable human author for registration, but also human authorship of the protected work⁶.
AI is used in industries like journalism. For example, Narrative Science®’s patented Quill™, software that produces news and reports⁷. As detailed on their website, writing a story is as easy as picking the dates someone wants to write about⁸. The power of such tools is that “they explain your data in a way anyone can understand — with stories”⁹.
For general writing, AI support like Sudowrite features an artificial intelligence engine that can “break writer’s blocks with our magical writing AI”¹⁰. Sudowrite uses as its base a GPT-3 or “generative pre-trained Transformer 3” developed by OpenAI, a San Francisco-based artificial intelligence research lab and acquired by Microsoft® in 2019. The deep learning model can produce 175 billion parameters of human-like text and learn from large text datasets containing hundreds of billions of words.
Copyright does not necessarily exclude the works that AI writing assistants used from copyright registration. Although there is currently no case law indicating which direction the courts can take in this area, a human author can still show a certain level of creativity, as the author may only want the inspiration of an AI assistant, rather than his words literally to use. The copyright office may request statistics showing what percentage of the work the AI assistant used compared to the human author. However, it can be difficult to get such metrics from such wizards as they may not be capable of such an operation.
Use of AI in the visual arts
In the summer of 2021, engineers used artificial intelligence to restore Rembrandts The Night Watch¹¹. Scientists used neural networks to scale the missing elements from the copy to the original. Another set of algorithms helped them match Rembrandt’s signature style of light-and-shade while “expanding” the piece back into its full form.
In addition, artists created a work called “Portrait of Edmond De Belamy” using a computer-generated algorithm:
The piece sold for $432,500 – 45 times its expected price¹². The painting contains a signature in the lower right that contains part of the algorithm that produced the work. The algorithm consists of two parts: the generator, which creates a new image based on the sentence, and the discriminator, which aims to tell the difference between a human-made image and a generator-made image¹³. The generator learns from its mistakes; If the discriminator is tricked into believing that a new image is a real portrait, the portrait emerges. The algorithm was trained on a set of 15,000 portraits from the online art encyclopedia WikiArt, spanning the 14th to 19th centuries.
The fine arts is another group where there is no case law that would help with the issue of copyright ownership of a work. Should the programmer or programmers who developed the code or algorithm own the registry? The work itself is not subject to registration due to the human authorship described above.
The US Copyright Office has given the first indications. On February 14, 2022, the Copyright Office refused to register an artwork called “A Recent Entrance to Paradise” made entirely with an AI machine called DABUS, which stands for “Device for the Autonomous Bootstrapping of Unified Sentience”.
The Copyright Office stated: “[c]copyright only protects “the fruits of intellectual work” that “in the creative powers of [human] Mind’” and noted that it accepted “as a threshold matter” that “the image was autonomously constructed by artificial intelligence without any creative input from a human actor”¹⁴. The board also cited the Supreme Court case Burrow-Giles Lithographic v. Sarony in which Justice Miller limited copyright protection to “artists of flesh and bone”¹⁵.
The use of artificial intelligence in art continues to grow and therefore the legal implications of such use, especially in copyright law, are still not clear. Congress and the courts should provide guidance on how to proceed in this area. This guide should be consistent with the rest of the world to make copyright registration consistent under the Berne Convention.
1. “Fostering the progress of science and the useful arts through temporary safeguarding authors and inventors the exclusive right to their respective writings and discoveries,” U.S. Constitution, Article 1, Section 8, Clause 8.
2. New Oxford American Dictionary, 3rd ed. (New York: Oxford University Press, 2010), sv “Artists”.
3. ID.sv “person”.
4. 17 USC § 102(a)
6. US Copyright Office, Compendium of US Copyright Office Practices § 306 (3rd ed. 2021) (“The US Copyright Office will register an original work of authorship provided that the work was created by a human being”).
11. https://www.bbc.com/news/technology-57588270#:~:text=The%20missing%20edges%20of%20Rembrandts%20were%20restored%20with%20artificial%20intelligence%20.&text=But%20computer software% 20has now%20trained%20the%20processing%20of%20existing%20information.
14. Copyright Office, Correspondence ID 1-3ZPC6C3; SR # 1-7100387071, February 14, 2022.