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Is there a substitute for the human touch? AI-generated work isn’t copyrightable

June/July 2024 Cantor Colburn IP Newsletter

Artificial intelligence (AI) seems to be everywhere these days. One place it keeps popping up is in applications submitted to the U.S. Copyright Office — where the applications have been uniformly rejected because copyrightable works require “human authorship.” One recent submission provides a good illustration of the difficulties presented by works created with the help of AI when it comes to obtaining copyright protections.

If at first you don’t succeed

The application in question was filed in late 2021, with two authors listed. The applicant listed himself as the author of “photograph, 2-D artwork” and an AI painting app called RAGHAV as the author of “2-D artwork.” The application included a 17-page document describing how RAGHAV’s technology functions and how the applicant used it to create the work.

Specifically, the applicant generated the work by inputting an original photograph into the AI app along with a copy of the van Gogh painting “Starry Night,” which would be the “style” applied to the photo. He then chose a “variable value determining the amount of style transfer.”

The Copyright Office refused to register the work because it lacked the requisite human authorship to support a copyright claim. Although the work included some human authorship, it said, that authorship was indistinguishable from the final work produced by the app.

Try, try again

The applicant sought reconsideration of the initial refusal to register the work, arguing that the copyright law’s human authorship requirement doesn’t require a work to be created entirely by a human. This time, the office refused registration after concluding the work was a derivative work that didn’t contain enough original human authorship to support a registration.

It found the work to be a classic example of derivative authorship because it was a digital adaptation of a photograph. The new aspects were generated by the AI app, not a human, making it not registrable. Ever persistent, the applicant requested yet another reconsideration.

On second reconsideration, the review board cited the Copyright Office’s March 2023 registration guidance for works created by a generative-AI system such as RAGHAV. According to the guidance, the office considers whether the AI was merely an assisting instrument or whether it actually conceived and executed the traditional elements of authorship, such as literary, artistic or musical expression or elements of selection and arrangement.

Applying the relevant legal standards, the board found that the expressive elements of pictorial authorship in the work submitted for copyright weren’t provided by the human applicant. He provided only the three inputs to the RAGHAV app — the base image, the style image and the variable value for the strength of the style transfer. It was the app that was responsible for determining how to interpolate the base and style images with the style transfer value.

The applicant claimed his decisions resulted in the work containing a sunset, clouds and a building. The board, however, found that the work contained those elements as a result of using an AI tool that generates an image with the same content as a base image but with the style of the chosen picture. He didn’t control where the elements would be placed, whether they would appear or what colors would be applied to them. That was up to RAGHAV.

The app’s interpretation of the photo in the style of another painting was a function of how the AI worked and was trained, not specific contributions or instructions from the applicant. His selection of the strength of the style alone didn’t warrant copyright protection; selecting a single number is the type of de minimis authorship not protected by copyright.

Stay tuned

The Copyright Office no doubt will continue to receive applications for works in which AI plays a creative role, especially as more decisions like this one shed light on the sticking points. In this case, though, while the applicant can apply to register his photograph, he can’t register the AI-modified version.

© 2024

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