The Machine as Author

Author:Daniel J. Gervais, PhD
Position:Milton R. Underwood Chair in Law, Vanderbilt University. Associate Reporter, Restatement of Copyright
Pages:2053-2106
2053
The Machine as Author
Daniel J. Gervais, PhD*
ABSTRACT: The use of Artificial Intelligence (“AI”) machines using deep
learning neural networks to create material that facially looks like it should
be protected by copyright is growing exponentially. From articles in national
news media to music, film, poetry and painting, AI machines create material
that has economic value and that competes with productions of human
authors. The Article reviews both normative and doctrinal arguments for and
against the protection by copyright of literary and artistic productions made
by AI machines. The Article finds that the arguments in favor of protection
are flawed and unconvincing and that a proper analysis of the history,
purpose, and major doctrines of copyright law all lead to the conclusion that
productions that do not result from human creative choices belong to the
public domain. The Article proposes a test to determine which productions
should be protected, including in case of collaboration between human and
machine. Finally, the Article applies the proposed test to three specific fact
patterns to illustrate its application.
I. INTRODUCTION ........................................................................... 2054
II.NORMATIVE ARGUMENTS FOR PROTECTION ............................... 2064
A.PROTECTING VALUE .............................................................. 2064
B.MARKETPLACE COMPETITION ................................................ 2066
III.DOCTRINAL ARGUMENTS FOR PROTECTION ............................... 2068
A.ROLE OF AESTHETIC MERIT ................................................... 2068
B.HUMANS AS PROXY AUTHORS ................................................ 2068
IV.NORMATIVE ARGUMENTS AGAINST PROTECTION ........................ 2072
A.THE HUMANNESS OF AUTHORSHIP ......................................... 2073
*
Milton R. Underwood Chair in Law, Vanderbilt University. Associate Reporter,
Restatement of Copyright, First. The Author is grateful to Dan Burk, Joseph Fishman, Jane
Ginsburg, Bernt Hugenholtz, Pamela Samuelson, Lawrenc e Solu m, Joa o P. Quintais and Svetlana
Yakovleva for comments on earlier versions, or discussion about various parts, of the Article, to
the Vanderbilt Law School students in my Robots, AI & the Law class who discussed and helped
improve some of the ideas in the Article, and to the editors at the Iow a Law Review for their careful
editing work. All errors and omissions are mine.
2054 IOWA LAW REVIEW [Vol. 105:2053
1.The Early Figure of the Author .................................. 2073
2.The Statute of Anne and Early American Law .......... 2075
3.Author’s Rights as Human Rights .............................. 2079
4.Evolution of Authors’ Rights in the
United States ............................................................... 2081
B.WITH RIGHTS COME RESPONSIBILITIES .................................. 2085
V.DOCTRINAL ARGUMENTS AGAINST PROTECTION ........................ 2088
A.ORIGINALITY ........................................................................ 2088
1.Creative Choices .......................................................... 2089
2.Application to Machine Productions ......................... 2092
3.Works Made for Hire? ................................................. 2094
B.DERIVATIVE WORKS ............................................................... 2096
VI.THE PATH FORWARD ................................................................... 2098
A.HUMANS AS CAUSE ................................................................ 2098
B.CREATIVE CHOICES AS WATERMARKS OF ORIGINALITY ............ 2100
C.LEGISLATION V. COMMON LAW .............................................. 2101
D.APPLICATIONS ....................................................................... 2102
1.Computer-Created Productions ................................. 2103
2.AI Photography ........................................................... 2103
3.AI-Aided (“Joint”) Works ............................................ 2105
VII. CONCLUSION .............................................................................. 2105
Machines don’t own what they make.”1
I. INTRODUCTION
What if the robots took over the set, and then wrote and produced the
next episode of Westworld?2 Is this science-fiction? Well, yes. For now. But
closing the gap between fiction and reality is only a matter of time because
algorithmic creation is here.3
1. See Jonathan R. Tung, Who Owns the Creation of an Artificial Intelligence?, TECHNOLOGIST
(Aug. 22, 2016, 11:57 AM), https://blogs.findlaw.com/technologist/2016/08/who-owns-the-
creation-of-an-artificial-intelligence.html [perma.cc/WB5H-7RE7] (emphasis added).
2. For the reader who may not be familiar with this (Westworld) television series—the first
season of which was broadcast in 2016—Westworld is a “Wild West” amusement park populated
by robots, called “hosts.” Human guests indulge their wildest fantasies with the hosts, including
shooting them. The robots cannot harm humans. That is, until (spoiler alert) robots become
aware, and revolt. A motion picture with the same title was produced in 1973. See Westworld
(1973), IMDB, https://www.imdb.com/title/tt0070909 [https://perma.cc/JM6E-4AZS];
Westworld, IMDB, https://www.imdb.com/title/tt0475784 [https://perma.cc/Q3YS-VRU8].
3. See Annemarie Bridy, The Evolution of Authorship: Work Made by Code, 39 COLUM. J.L. &
ARTS 395, 397–98 (2016) [hereinafter Bridy, Evolution] (describing algorithmic creation); see also
2020] THE MACHINE AS AUTHOR 2055
In December 2016, an artificial intelligence (“AI”) system—what this
Article refers to as an “AI machine”—composed polyphonic baroque music
bearing the “style” of Johann Sebastian Bach.4 So-called “robot reporters”
routinely write news bulletins and sports reports, a process called “automated
journalism.”5 Machines write poems that many people believe were written by
a human author.6 Machines draft contracts.7 A machine named e-David
produces paintings using a complex visual optimization algorithm that
“takes pictures with its camera and draws original paintings from these
photographs.”8 Machines can write scenes of animation movies and improve
the design of objects and processes, thus generating outputs that would, were
Annemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent A uthor, 2012 STAN. TECH.
L. REV. 5, 5–6 [hereinafter Bridy, Coding] (“[A]ll creativity is inherently algorithmic . . . .”).
4. This Article uses “machine” as a generic term that may apply to a computer using
Artificial Intelligence (“AI”) software but could also cover machines capable of movement such
as a robot painting on canvas.
On the topic of machines composing music, see generally Ga ëtan Hadjeres & François
Pachet, DeepBach: A Steerable Mo del for Bach Chorales Generation (Dec. 3, 2016), https://
arxiv.org/pdf/1612.01010v1.pdf [https://perma.cc/5JYM-8BY3] (explaining a new AI model
that can produce “highly convincing” chorales in the style J.S. Bach’s “four-part harmony with
characteristic rhythmic patterns and typical melodic movements to produce musical phrases
which begin, evolve and end (cadences) in a harmonious way”); and William T. Ralston, Copyright
in Computer-Composed Music: HAL Meets Handel, 52 J. COPYRIGHT SOCY U.S.A. 281 (2005).
5. See Corinna Underwood, Automated Journalism—AI Applications at New York Times, Reuters,
and Other Media Giants, EMERJ, https://emerj.com/ai-sector-overviews/automated-journalism-
applications [https://perma.cc/FZ7E-5EFJ] (last updated Nov. 17, 2019). The Washington
Post’s robot reporter reportedly published 850 articles from September 2016 to September 2017,
including 300 on the Olympic Games held in Rio de Janeiro. See Lucia Moses, The Washington
Post’s Robot Reporter Has Published 850 Articles in the Past Year, DIGIDAY (Sept. 14, 2017),
https://digiday.com/media/washington-posts-robot-reporter-published-500-articles-last-year
[https://perma.cc/2TC4-MDWN]; see also Robert C. Denicol a, Ex Machina: Copyright Protection for
Computer-Generated Works, 69 RUTGERS U. L. REV. 251, 257 (2016) (“Artificial intelligence is
increasingly prominent in journalism.”).
6. See Samuel Gibbs, Google AI Project Writes Poetry Which Could Make a Vogon Proud,
GUARDIAN (May 17, 2016, 7:01 AM), https://www.theguardian.com/technology/2016/may/
17/googles-ai-write-poetry-stark-dramatic-vogons [https://perma.cc/NWA5-58N5] (“The
researchers fed the system starting and ending sentences and then asked it to fill in the gap.
. . . The generated sentences make grammatical sense, maintain a sort of theme and for the most
part fit with the start and end sentence. Others weren’t quite as poetic, but still maintain the
theme set by the start and ending sentences.”).
7. See generally Kathryn D. Betts & Kyle R. Jaep, The Dawn of Fully Automated Contract Drafting:
Machine Learning Breathes New Life into a Decades-Old Promise, 15 DUKE L. & TECH. REV. 216 (2017)
(discussing the advances in contract drafting software and the use of AI in that context).
8. Shlomit Yanisky-Ravid, Generating Rembrandt: Artificial Intelligence, Copyright, and
Accountability in the 3A Era—The Human-Like Authors Are Already Here—A New Model, 2017 MICH.
ST. L. REV. 659, 662.

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