Tech Tips: the Quantum Creativity Conundrum: the Future of Copyrightable Generative Ai

• Citation: Vol. 73 No. 2 Pg. 0025
• Publication year: 2024
• Pages: 0025
• Year: 2024

TECH TIPS: The Quantum Creativity Conundrum: The Future of Copyrightable Generative AI Vol. 73 No. 2 Pg. 25 Rhode Island Bar Journal September/October 2024

The Quantum Creativity Conundrum: The Future of Copyrightable Generative AIby Nicholas Matlach, Esq., ioLiberum Law Firm, PC., Providence

The power and promise of Generative AI have sparked widespread debate. As Judge Stern and Brian Murphy aptly pointed out in the May/June issue of the Rhode Island Bar Journal, this and other emerging technologies sit at the "crossroads of tradition and progress,"^[1] a tension that directly influenced the ABA's recent updates to its Model Rules of Professional Conduct.^[2]

The rapid adoption of these new technologies is largely due to the efficiencies and cost savings they create for businesses. Generative AI can quickly produce first drafts of marketing copy, Rhode Island Bar Journal articles? computer code, and images, all while freeing us up for more valuable tasks. However, the U.S. Copyright Office has made it clear that works created solely by machines are not eligible for copyright protection due to a lack of human authorship? When man and machine combine to create a unique work of authorship, it appears to require the quantum dimension to determine the existence of "traditional elements of authorship in the work."^[5]

Zarya of the Dawn

On September 15, 2022, Kristina Kashtanova submitted a graphic novel titled "Zarya of the Dawn" for copyright, and copyright was granted that same day.^[6] Shortly after, Ms. Kashtanova made statements on social media describing her creative process as using Midjourney, a generative image AI tool, to create the illustrations that she then modified and arranged to accompany her writing? The U.S. Copyright Office then determined that both the text and the arrangement were copyrightable under 17 U.S.C. § 102(a)? but the images created by Midjourney were not. This decision came despite her explanation that to create the images, she first had to create the prompt to guide Midjourney to produce images capable of conveying her intent, then she had to manipulate the images to fix defects and blemishes, and on certain images, she applied additional manual variations to evoke tone and intent?

The Quantum Creativity Conundrum

While the Midjourney images created by Ms. Kashtanova didn't meet the standard for copyright, the Office stopped short of denying Generative AI images ever receiving copyright consideration. Rather, "works that contain otherwise unprotectable material that has been edited, modified, or otherwise revised by a human author, but only if the new work contains a 'sufficient amount of...