My essay for ES2660, which I thought through a bit before writing. I enjoyed writing this since this is the first time I wrote an argumentative piece in a long while. Word cap is 850.

Beyond Human Hands: The Case for Copyrighting AI-Generated Art

Criteria for copyright

As if ripped from a science fiction novel, a painting not born of human hands has swept through the art world by storm, stirring as much admiration as controversy. This piece in question, Théâtre D’opéra Spatial sparked a fiery debate when its application for copyright protection got denied 1: should AI artworks be granted copyright protection?


I believe that AI artworks, like other digital artworks, deserve copyright considerations.

Criteria for copyright

Yet many balk at this notion. When US District Judge Beryl Howell rejected copyright for the AI artwork, she claimed that “human authorship is a bedrock requirement of copyright” and dismissed AI art as “absent of any guiding human hand” 2, which highlights the importance of human agency in copyright considerations. This makes sense since in order for one to “own” a piece of something, you have to at least be involved in the creation of that something. Apart from authorship 3, two other crucial components of copyright considerations are originality and creativity 4.


This essay does not aim to redefine the criteria for copyright, but rather, make the case that AI generated art should be considered for copyright under existing criteria. In other words, I accept that human agency (or authorship), originality and creativity are crucial considerations for copyright. What I disagree with Judge Beryl and critics is that AI art is absent of any guiding human hand, lacks originality and creativity.

Do AI artworks fit in?

Firstly, it is important to note that the “human hand” mentioned in this context is not meant to be taken literally, evidently with the copyright of digital art that are aided by computer programmes such as Adobe Photoshop (which itself is a software that also employs some form of AI technology) 5, or photographs (which is aided by a camera) 6. For the former, despite the aid from tools, there is human agency involved in choosing the idea to convey, what to draw, how to draw, with each stroke being a decision itself. For the latter, it involves choosing the subject and choosing how to shoot. For AI art, people often underestimate how much guidance is needed to reach the end product. From choosing a subject, to styles, lighting and dimensionality, and even the way sentences are phrased can have a huge effect on the end result 7. Just like illustration softwares and cameras, generative AI is just a tool, and requires human agency that is deliberate, purposeful, and intentional to create the artworks.


However, you might not be fully convinced. After all, the act of creating digital art seems to demand a more intensive decision-making process than AI art. One requires hundreds (or thousands) of strokes that are meticulously pieced together by the individual, while the other requires just typing in a few sentences. Right?


Maybe, but this hinges on the assumption that the volume and intensity of decision-making dictate authorship. Have you ever gazed at an artwork and wondered “How is this considered art?”. Despite how one may feel, abstract artworks like the Green White by Ellsworth Kelly (sold for $1.7 million) 8 are eligible for copyright, so do spontaneously snapped pictures 9. Conversely, the controversial AI art in question has undergone 624 adjustments to the prompt 10. It is not unreasonable to claim that there exists AI generated artworks that surpassed existing copyrighted artworks when it comes to volume and intensity of decision-making, and hence authorship.


Furthermore, I do think there are substantial potential for originality and creativity in AI artworks. After all, you are the one that decides what prompt to insert. It is important to note that the bar for originality and creativity is not high, requiring no more than “an absence of plagiarism” 11 for the criterion of originality and the creativity to not be “utterly lacking or so trivial to be nonexistent” 12. Even for existing art, you can secure copyright for artworks influenced by other artists, or copyright photographs of the same subject in identical style. AI art should be subjected to the same standard (which is very low). Even if you include the style of some artists in your prompt, you are not plagiarising, but rather taking inspiration, like how Marcel Duchamps’ L.H.O.O.Q. is inspired by da Vinci’s Mona Lisa 13. Likewise, prompting for a specific style automatically qualifies the artwork as creative.

Ending note

Of course, I am not claiming all AI art meet the criteria for copyright, but it seems like there are some AI generated artworks that exhibit a degree of “human authorship” that meets or even rival conventional artworks, while at the same time meeting the low bar of originality and creativity. Legal frameworks often lag behind technological advancement, with digital artworks and photography being subjects of controversy when they first emerged, though they have adapted with the passage of time. This time is no different, with the emergence of AI presenting a another pivotal moment for adaptation. We should embrace these changes so that creativity continues to be protected, regardless of the tools used to express it.


References:

1.     Abrams, H. B., “Duke Law Scholarship Repository Duke Law Research,” ORIGINALITY AND CREATIVITY IN COPYRIGHT LAW, https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4136&context=lcp (accessed Nov. 5, 2023).

2.     Arday, D., Digital Art & Copyright Law, http://www.theinformedillustrator.com/2016/09/digital-art-copyright-law.html (accessed Nov. 5, 2023).

3.     Brittain, B., “AI-generated art cannot receive copyrights, US Court says,” Reuters, https://www.reuters.com/legal/ai-generated-art-cannot-receive-copyrights-us-court-says-2023-08-21/ (accessed Nov. 5, 2023).

4.     Davis, W., “AI-generated art cannot be copyrighted, rules a US federal judge,” The Verge, https://www.theverge.com/2023/8/19/23838458/ai-generated-art-no-copyright-district-court (accessed Nov. 5, 2023).

5.     Duchamp, M., “About the collection,” Norton Simon Museum, https://www.nortonsimon.org/art/detail/P.1969.094 (accessed Nov. 5, 2023).

6.     Gover, K. E., “Art, authorship, and authorization,” Oxford Scholarship Online, 2018. doi:10.1093/oso/9780198768692.003.0002

7.     Kelly, E., “Green White,” Ellsworth Kelly (b. 1923), https://www.christies.com/en/lot/lot-5147465 (accessed Nov. 5, 2023).

8.     Knibbs, K., “Why this award-winning piece of Ai Art Can’t be copyrighted,” Wired, https://www.wired.com/story/ai-art-copyright-matthew-allen/ (accessed Nov. 5, 2023).

9.     Team, F., “The Essential Guide to photography and copyright law,” The Essential Guide to Photography and Copyright Law, https://www.format.com/magazine/resources/photography/photography-copyright-law-guide (accessed Nov. 5, 2023).

10.  Willwulfken, W., “Willwulfken/Midjourney-styles-and-keywords-reference,” GitHub, https://github.com/willwulfken/MidJourney-Styles-and-Keywords-Reference (accessed Nov. 5, 2023).