AI and Copyright: Is There Hope for Sound Laws that Protect Creators?

The rapid proliferation of emerging technologies such as Artificial Intelligence (AI) and other machine
learning programs are generating legal questions that need to be addressed by the courts to effectively
safeguard the rights of artists and other creators. Generative AI may deliver stories, songs, and pictures in
an unnaturally quick time, making it the perfect fit for creative industries. These developments raise
concerns of intellectual property law and privacy law. The main legal debates revolve around the
ownership of works generated by AI, the use of copyrighted works to train AI, and the use of AI to
replicate the artists’ image and voice.

I) AI Output: Is it the author or just a tool.

A. AI-Generated Content - AI as an Author

The Copyright Act of 1976 provides that to qualify for copyright protection, a work must meet two
requirements: originality and fixation. In 1991, the U.S. Supreme Court narrowed the originality
requirement, to works independently created by the author, and those which possessed at least some
minimal degree of creativity. In the matter of authorship, the Supreme Court has not issued a direct
decision as of now, but various cases have been addressed in different appellate courts.

In Urantia Foundation v. Maaherra (1997) the United States Court of Appeals Ninth Circuit, stated that the
copyrightability of a book, “authored by celestial beings and transcribed, compiled and collected by mere
mortals” was copyrightable to the extent such that human selection and arrangement of the revelations
existed. Hereby, introducing the element of human creativity for the first time to the requirement of
originality.

In Kelley v. Chicago Park Dist. (2011) the United States Court of Appeals, Seventh Circuit held that a
“living garden” was not copyrightable because authorship is an entirely human endeavor and creative
elements of the garden were authored by mother nature. The Court ruled that “Authors of copyrightable
works must be human; works owing their form to the forces of nature cannot be copyrighted.”

In Naruto v. Slater (2018) the United States Court of Appeals Ninth Circuit, ruled that “a monkey—and all
animals, since they are not human—lacks statutory standing under the Copyright Act to sue for copyright
infringement of photos taken by the monkey.” The court pointed out that copyrightability could be claimed
for compilation, selection, coordination, and arrangement of the photos.

In Thaler v. Perlmutter (August 2023), the United States District Court, District of Columbia directly
addressed the issue of generative AI being authors of copyrightable works. Thaler developed "Creativity
Machine," a generative AI system that creates original pieces of virtual art. He argued that the AI was the
author of such works. Then he claimed that he contracted for the creation of each work under the work-
for-hire doctrine, and as such he was owner of their copyright. The court denied Thaler’s claim and held
that human creativity is the sine qua non at the core of copyrightability, even if it is channeled through
new tools or into new media.

Based on these legal precedents, we conclude that the presence of human authorship is fundamental to
copyrightability, making it clear that generative AI cannot be considered authors under current copyright
law.

B. AI-Assisted Content - AI as a Tool

The question that remains open from Thaler is to what extent can a person claim copyright protection of a
creative work if he is using an AI generative system as a tool? Could Thaler have succeeded in claiming
authorship if he had asserted that he was the creator of the work, with AI playing a supportive role in
realizing his creative vision?
In Burrow-Giles Lithographic Company v. Sarony (1884), the United States Supreme Court addressed the
question of whether a photograph of Oscar Wilde was considered the creation of the author. Like with AI,
the historical context of this case involves a “new” technology used to generate an output. The first
photographic camera for commercial purposes was released in 1839. The court discussed whether
Sarony could be considered the author of an original work or if the photograph was a mere mechanical
reproduction. The court held that photographs could be the subject of copyright protection, as long as
they are the representation of original intellectual conceptions of the author. The court based its decision
on the defense's thorough reasoning on proving that the machine was being used as a tool. Sarony
argued that the photograph is the result of “his own original mental conception, to which he gave visible
form by posing the said Oscar Wilde in front of the camera, selecting and arranging the costume,
draperies, and other various accessories in said photograph, arranging the subject so as to present
graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired
expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he
produced the picture in suit." Based on Sarony, it is reasonable to assert that when a human author uses
AI as a tool, backed by compelling evidence that the resultant creation reflects the original intellectual
conceptions of the human author copyright protection for the work can be claimed by the human author.

It's important to emphasize that copyright protection follows human creativity. As such, the creator of the
AI system would have as much claim of ownership to the work derived from its system, as the creator of
the camera has in photographs taken by others. The human making the prompt to the AI system, and
giving life to their original intellectual conceptions would be the one that could claim copyright protection
for their work. The primary challenge then revolves around keeping proper records evidencing the human
creative process to create the intended expression. For example, the selection and arrangement of the
information given to the AI system, language indicating context or suggesting evoking a feeling, or the
choice of the specific AI system to be used.

i) The Copyright Office Position

The Copyright Office signed a guidance for Works Containing Material Generated by Artificial Intelligence
earlier this year in an attempt to create certainty on the registration of works containing AI-generated
content. According to these guidelines, individuals seeking to register copyrighted works must disclose
any use of AI to the creation of the work and provide a brief explanation of the human author’s
contributions to the work. The Copyright Office requires human authorship for copyright protection to
attach, and it determines case-by-case if the expressive elements of the work are generated by the
human or the AI. Control over the work’s expression and the formation of the elements is a determinative
factor. The Copyright Office gives a clear response as to works where a person gives a simple prompt to
an AI system, and the AI system generates complex work in response. In such cases, it’s considered that
the elements of authorship were determined and executed by the AI system and not the individual.
Therefore, it cannot be subject to copyright. However, it provides an exception for works generated by AI
where a person “selects or arranges” or transforms such work in a sufficiently creative way. In such
cases, copyright can be claimed for any human-authored expression of the whole work.

ii) Can we Contract while the Laws Emerge

Without a clear pronunciation from the courts, the feeling in the various creative industries is that “we are
in the technological wild wild west”, and where the law has not yet given an answer, the market tends to
regulate itself. In July 2023, WGA and SAG-AFTRA went on one of the longest strikes in history, causing
a complete halt of activities in the film and television industry. The main issues the guilds were putting on
the table were, i) the use of AI in the industry, and ii) the distribution of residuals from streaming revenues.
On September 27, the writer’s guild reached an agreement with AMPTP, and the relevant provisions on
AI were:

● AI can’t write or rewrite literary material, and AI-generated material will not be considered source
material under the agreement, meaning that AI-generated material can’t be used to undermine a
writer’s credit or separated rights.
 ● A writer can choose to use AI when performing writing services, if the company consents, and
provided that the writer follows applicable company policies, but the company can’t require the
writer to use AI software (e.g., ChatGPT) when performing writing services.
● The Company must disclose to the writer if any materials given to the writer have been generated
by AI or incorporate AI-generated material.
● The WGA reserves the right to assert that exploitation of writers’ material to train AI is prohibited
by MBA or other law.

The reality is that AI is being used and it is hard to track when or how it is being used. Those involved in
the creative industries seem to have accepted the use of AI, so long as it is not replacing humans in their
roles. The lyricist is using AI to generate lyrics, the writers are using AI to generate scripts, and the
industry has not demerited the human authorship on works generated with the assistance of AI. The use
of AI is currently accepted, so long as it is not being used by the big studios to replace humans and taking
humans jobs.

iii) Europe’s Position

In April 2021, the European Commission introduced a proposal for an EU regulatory framework
concerning AI, the Artificial Intelligence Act. The European Parliament approved an amended version of
the AI Act in June 2023, which is currently being negotiated with the EU Council and the European
Commission. The question regarding copyright ownership of AI-generated works remains unresolved.
However, the AI Act proposes more transparency and higher protections for input of copyright works into
the AI systems. The AI Act requires generative AI systems using large language models (LLMs) to
generate art, music, or other content to disclose that if the content was generated by AI. Additionally, the
Act requires these systems to disclose information about copyrighted data used to train these models.

II) Input of copyrighted works to train AI

AI systems require extensive data input to be able to generate their output. As a result, the tech
companies are racing to supply their AI systems with the greatest amount of data on their specific sector.
Since the training process involves the reproduction of a digital copy of the inputted works into the AI
system, legal issues arise when this information contains copyrighted material.

Copyright infringement occurs whenever an unauthorized copy of a work is made, even if it’s used solely
for the private purposes of the party reproducing the work. The act of copying the data to their systems for
the AI’s exclusive use as a data library is enough for finding infringement. No distribution is needed to
infringe the reproduction right.

The fair use doctrine allows under certain circumstances the use of copyrighted works without seeking
permission from the copyright holder. Courts analyze four factors to determine the existence of fair use: (i)
The purpose and character of the use; (ii) The nature of the copyrighted work; (iii) The amount and
substantiality of the portion used in relation to the copyrighted work as a whole; and (iv) The effect of the
use upon the potential market for or value of the copyrighted work.

Under the first prompt, the courts look at how the copyrighted work is being used. It considers
noncommercial uses more likely to be fair use than commercial uses, and transformative uses more likely
to be fair use as well. Transformative uses are those that add something new, with a further purpose or
different character, and do not substitute for the original use of the work.

In Perfect 10 v. Amazon (2007), the United States Court of Appeals Ninth Circuit, concluded that Google’s
reproduction of images into thumbnail format were covered under the fair use exception. The court
indicated that the significantly transformative nature of Google’s search engine, particularly in light of its
public benefit, outweighed the Defendant’s superseding and commercial uses of the thumbnails.
In The Authors Guild v. Google (2017), the United States Court of Appeals Second Circuit, found fair use
was applicable to Google digital copies of books submitted to it by major libraries, which allows the public
to search the texts of the digitally copied books and see displays of snippets of text. The Court stated that
“Google’s text‐searchable database service was ‘transformative’ and Google’s features integrated into its
system protected the rights of copyright holders.

In Andy Warhol v Goldsmith (2023), the United States Supreme Court focused its decision on the
“purpose and character of the use of the copyrighted work” the court took a different approach stating that
the use of Andy Warhol’s work was not transformative because both parties’ works shared “substantially
similar” purposes. The main difference lies in the analysis being centered around the character of the use,
rather than the work itself.

A fair conclusion in regards to the fair use of copyrighted material to feed AI systems, would have to part
from the fact that AI systems are not consistent among each other. As such, even if they are all copying
the works for their own database, a fair use analysis may differ between AI systems. The path to fall in the
exception is then having a sufficiently transformative use from the copyrighted work.