PART 1

If you scrolled through social media during the month of December, you probably saw an explosion of digital self-portraits from your friends and colleagues using the AI-art app, LENSA. LENSA is the latest AI-art app to join the ranks of Midjourney and DALL-E. LENSA uses artificial intelligence to digitize portraits in a variety of categories, from anime to fantasy to “stylish”.

The meteoric rise of AI applications has left the industry and onlookers wondering how this rapidly developing technology will interact with copyright law and whether the law can keep up. As of the publishing of this article, the legal landscape is far from clear with both the creators of the AI tools and artists waiting with bated breath on what is to come.

Two big questions arise when considering AI art: 1) Can AI art be copyrighted; and 2) What about the artists who are having their art “sampled” (though some prefer “stolen”) to supply the data for these diffusion models?

The article today focuses on the first question.

LENSA uses a technology known as a diffusion model, which creates images by adding random noise to a set of training images, and then learning how to remove noise to construct the desired image. LENSA specifically uses Stable Diffusion, an open-source text-to-image application created by StabilityAI. It is one of many systems that are trained on massive amounts of content plucked from the web. It collects billions of images extracted from hundreds of domains, from personal blogs to art platforms (such as DeviantArt, Shutterstock, and Getty Images).

So far, we know that the U.S. Copyright Office will reject a request to allow an AI to copyright a work of art. Earlier this year, a three-person board reviewed a 2019 ruling against Stephen Thaler, who tried to copyright a picture on behalf of an algorithm dubbed the “Creativity Machine.” In his original application, Thaler stated that the work “was autonomously created by a computer algorithm running on a machine” and that he was “seeking to register [the] computer-generated work as a work-for-hire to the owner of the Creativity Machine.” In its decision rejecting the application, the Board found that Thaler’s AI-created image did not include an element of “human authorship,” which is required for protection. As stated in the Compendium of U.S. Copyright Office Practices, the U.S. Copyright Office will not register works produced by a machine or mere mechanical intervention from a human author.

Courts interpreting the Copyright Act, including the Supreme Court, have consistently restricted copyright protection to “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” In its decision, the Board emphasized that courts have consistently upheld human authorship as a requirement for copyright protection.

But the degree of human authorship is still an open question. Indeed, the Compendium states that the crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

For example, in Burrow-Giles Lithographic Co. v. Sarony, a copyright defendant argued that photographs could not be copyrighted because they are simply “reproduction[s] on paper of the exact features of some natural object or of some person.” The defendant argued that this reflected a purely mechanical process as opposed to an art, and could thus not embody an author’s “idea.”The Court held that an author is “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature” and that photographs are “representatives of original intellectual conceptions of [an] author.” The Court also referred to the “authors” as human.

Artist Kris Kashtanova became the latest to test the waters. In September, she became the first person to register a copyright for an AI-assisted work for an 18-page graphic novel called “Zarya of the Dawn.” Kashtanova’s work was created with “the assistance of” the AI art program, Midjourney, which also uses a diffusion model. The Copyright Office subsequently rescinded the registration, following a slew of online reports, on the basis that “the information in [her] application was incorrect or, at a minimum, substantively incomplete” due to Kashtanova’s use of the Midjourney service.

Kashtanova responded, through counsel, emphasizing in exhaustive detail how she “engaged in a creative, iterative process” that involved multiple rounds of composition, selection, arrangement, cropping, and editing for each image in her work, which made her the author of the work. Indeed, if the Supreme Court had said that only “a modicum of creativity” is necessary to make a work copyrightable, then the question becomes how much human intervention is necessary.

The Copyright Office has since initiated a proceeding to reverse its earlier decision to grant the copyright. While the outcome of the proceeding is not yet finalized and Kashtanova has a chance to appeal its decision, many are eagerly awaiting what may be very precedential for the future of AI art.

Stay tuned for Part 2…

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