PART 2: Who owns the copyright on art created by Artificial intelligence?

A copyright is a legal right granted to a creator of a new work of art. Copyright grants a creator exclusive rights to their works. When the creators exclusive rights are violated that is known as copyright infringement. Frequently copyright law fails to address issues that develop with new technology. Sound recordings were not granted copyright protect in the United States for number of decades. Artificial intelligence is a new technology on the horizon which will challenge United States Copyright law.

In the prior blog post on this subject: Who owns the copyright on art created by Artificial intelligence? we learned that the United States Copyright Office will not register a copyright on a work unless the creator is a human being. Animals cannot be granted copyright, natural objects cannot be copyrighted, and the products of random mechanical processes cannot be copyrighted. This practice would seem to prevent a work made by an Artificial intelligence from being copyrighted. However this is a practice based on the United States Copyright Office’s interpretation of United Sates Copyright Law. A persuasive argument can be made that there is enough creative spark in a work made by an Artificial intelligence to justify copyright protection.

Take for example the hypothetical: A computer programmer creates an artificial intelligence program called Ultimate Song. Ultimate Song is trained by feeding it all the music for the past 100 years along with statistics on which songs generated the most royalty revenue. Ultimate Song then begins creating its own musical works, which are completely unique. The music produced by Ultimate Song is a commercial success and pirated copies of Ultimate Song’s music is everywhere.

The United States Copyright Office might refuse to register the copyright on the musical works of Ultimate Song, but is that position supported by United States copyright law?

Registration of copyright is a step that must be taken before a copyright infringement lawsuit can be filed in the United States. If the computer programmer that created Ultimate Song wanted to sue the people who copied the musical works created by Ultimate Song, the computer programmer must persuade the United States Copyright Office to register the copyright. And the justification to allow Ultimate Song’s musical works to be copyrighted must be strong enough to convince a court or the court could say that Ultimate Song’s musical works cannot be copyrighted.

How can the computer programmer convince the United States Copyright Office to register the copyright on Ultimate Song’s music?

Artificial intelligence is generally defined as the theory and development of computer systems able to perform tasks that normally require human intelligence, such as visual perception, speech recognition, decision-making, and translation between languages. A human computer programmer typically creates and trains an Artificial intelligence by feeding it examples of what the Artificial intelligence should produce, the programmer then instructs the Artificial intelligence to produce something original.

This process is very similar to the teacher and student relationship used to train artists today. Students are given examples of good art work by a teacher, the students are encouraged to create their own art work and the teacher critiques the students art work.

Ultimate Song is not a random process. The computer programmer trained Ultimate Song by feeding it popular music. In that training lies the creative human input that defines artist works that may be copyrighted.

This argument is supported by the court cases cited by the United States Copyright Office to deny copyright to works not created by human beings. In Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) the United States Supreme Court held that photographs could be copyrighted even though a machine was used to create photographs. In that case the United States Supreme Court noted that the photographer selected the subject, the background and the lighting of the photograph. This selection was enough creative input to justify copyright protection.

A similar analogy can be made to an author using a word processor to write a novel or an artist using digital image editing software to create a painting. Copyright is not denied just because a computer is used as a tool by authors or artists. Artificial intelligence removes the direct creation of the work, but the artificial intelligence still requires training from a human being. The selection of material to train an Artificial intelligence, by a human computer programmer, is the creative input required for copyright.

A persuasive argument can be made that the copyright of the musical works created by Ultimate Song belongs to the computer programmer that created Ultimate Song. It will take a change in the law or a court case to get a real answer on this subject.

If you have questions or comments about this article please email the authors of this blog at: admin@uspatentlaw.cn