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 SOC’Y 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.