Legal Landscape Related to Ai-generated Works Remains Uncertain

• Jurisdiction: United States,Federal
• Citation: Vol. 3 No. 4
• Publication year: 2023
• topic: Copyright law

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Lisa T. Oratz and D. Sean West ^*

Abstract: From artificial intelligence (AI) tools that can generate highly sophisticated art, music, and conversation to technology capable of recreating Elvis on the big screen, a recent explosion and maturing of generative AI technologies is disrupting all forms of content. But while AI tools are becoming ubiquitous and creating new and innovative ways to create and monetize content, unanswered legal questions leave the legal landscape uncertain. This article discusses recent developments regarding the copyrightability of AI-generated works.

Background

How Does Generative AI Work?

Generative AI refers to a class of artificial intelligence algorithms that are designed to generate new, original content, such as images, music, or text, based on a given set of input data. There are various approaches to building generative AI models, but one of the most common methods is to use neural networks, which are a type of machine-learning algorithm inspired by the structure and function of the human brain.

In a typical generative neural network, the model is trained on a large data set of examples, such as images or text. The network learns to recognize patterns and relationships within the data and uses this knowledge to generate new content. For example, a generative text model might be trained on a large corpus of news articles and then used to generate new articles. Similarly, a generative image model might be trained on a data set of photos and then used to

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generate new images. Overall, generative AI has the potential to be a powerful tool for creating new and innovative content in a wide range of fields, including art, design, and entertainment.

User input plays a role in shaping the output of AI tools, with different tools allowing for different kinds of user input. Common inputs accepted by AI tools include text prompts (e.g., a question to be answered or a description of what the user wishes the tool to generate) and uploaded content (e.g., a reference image uploaded by the user that the tool is to use in creating the generated content). These inputs provide instructions that guide the AI tool. For example, the above description of generative AI was generated through ChatGPT using the text prompt "How does generative AI work?"

Human Authorship Requirement

The human authorship requirement in U.S. copyright law refers to the principle that a work must be created by a human being to be eligible for copyright protection. Although there is no express requirement of human authorship in the Copyright Act, the basis for the human authorship requirement is found in the U.S. Constitution. Section 1, Article 8, which is the basis for copyright protection, refers to "securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (emphasis added). From this, courts and the U.S. Copyright Office have consistently required some element of human authorship when determining questions of copyrightability. However, they have provided little meaningful guidance on what degree of human involvement is required in the creation of a work for the work to be protectable.

Case Law

There have been few cases addressing the human authorship requirement. The following cases have emerged as the most frequently cited by courts and the Copyright Office in interpreting the human authorship requirement:

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■ Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). This U.S. Supreme Court case addressed the issue of human authorship in the context of the novel assisting technology of the day—photography. The case involved a photograph of Oscar Wilde. Burrow-Giles, who had distributed prints of the photograph, argued that photography was merely a mechanical process and that the photographer, Napoleon Sarony, was therefore not an "author" (and the photograph was therefore not protected by copyright). Although the court recognized that to be protectable, a work needs to represent the "original intellectual conceptions of the author," it found that the photograph was the work of human authorship. ¹ The Court emphasized that the photographer's creative choices, such as posing the subject, arranging the scene and costumes, selecting the lighting, and suggesting and evoking the desired expressions, demonstrated the necessary originality to qualify for copyright protection.
■ Urantia Foundation v. Kristen Maaherra, 114 F.3d 955 (9th Cir. 1997). This Ninth Circuit case addressed the issue of human authorship in the context of a work purportedly authored by celestial beings. Although the Ninth Circuit started its discussion in Urantia Foundation with the observation that "copyright laws, of course, do not expressly require 'human' authorship," it ultimately held that "some element of human creativity must have occurred" for the work to be copyrightable. ² Although the work was claimed to be a transcription of answers from celestial beings to questions that were posed by the transcribers, sufficient human

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authorship was found in the selection and formation of the specific questions asked. "These questions materially contributed to the structure of the [works], to the arrangement of the revelations in each [work], and to the organization and order in which the [works] followed one another." ³
■ Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018). This Ninth Circuit case addressed the issue of human authorship in the context of a selfie allegedly taken by a crested macaque monkey named Naruto using a camera that had been set up by a British photographer named David Slater. In ruling against there being any copyright protection in the selfie, the court emphasized that the Copyright Act of 1976 only protects the works of human authors and that there was no indication that Congress intended to extend copyright protection to animals.

The reasoning of these cases also aligns with statements about human authorship in the 1978 report produced by the National Commission on New Technological Uses of Copyrighted Works (CONTU). In that report, CONTU observed that "the eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced." ⁴

Compendium of U.S. Copyright Practices

The main guidance for registration purposes comes from the Compendium of U.S. Copyright Practices. The Compendium does not have the force of law but rather is a policy document that guides the Copyright Office's registration practices. The Compendium has several entries on the human authorship requirement, including the following:

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■ Section 306—The Human Authorship Requirement. This section states that the U.S. Copyright Office will register an original

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