Attorney Steve® Copyright Law Essentials - Can you copyright register AI-generated art? Call us for DMCA, Fair Use Opinions, Privacy Disputes, Right of Publicity and Copyright Disputes!
Artificial intelligence is here. Now, you do not have to be an artist to create great art. This blog talks about AI and whether or not computer generated art can be copyright registered. A good place to start is with this video by Attorney Steve® called AI Copyright Law Crashcourse!
With Artificial intelligence, you can now download software and mobile applications that allow even the NON-Artist to create Art. I am certainly no artist and the items of this page were created by me through the use of a mobile application Dawn AI. To generate an original image, you simply need to input various words or a phrase (note these are not normally subject to copyright protection), and press GO. The tool will them scan whatever sources it is scanning (Google?) and then transforms the image or images and creates an entirely new work of digital art. The question is, since there is minimal creative input, and software basically creates the art, can this be copyright registered with the United States Copyright Office.
United States Copyright Office ("USCO") position
According to the Copyright office Compendium section 306:
The Human Authorship Requirement The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879).
Because copyright law is limited to “original intellectual conceptions of the author,” the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). For representative examples of works that do not satisfy this requirement, see Section 313.2 below.
Further, the USCO compendium notes:
As discussed in Sections 304 through 308, a work may be copyrightable (i) if it is eligible for copyright protection in the United States, (ii) if the work has been fixed in a tangible medium of expression, (iii) if the work was created by a human author, (iv) if the work constitutes copyrightable subject matter, and (v) if the work contains at least a minimum amount of creative authorship that is original to the author. When examining a claim to copyright, the registration specialist will use objective criteria to determine whether the work satisfies these requirements by reviewing the information provided in the application and by examining the deposit copy(ies), including its individual elements as well as the work as a whole. The specific criteria that the specialist will consider when examining a derivative work, a compilation, or a collective work are discussed in Sections 311 and 312. The specific criteria that the specialist will consider when examining a literary work, a work of the performing arts, or a work of the visual arts are discussed in Chapters 700, 800, and 900.
PODCAST: Potential legal issues with artificial intelligence
General position appears NOT to be absolute
Despite what appears to be the general rule cited above, there is a case where an AI-generated artwork received copyright protection. An AI generated "visual artwork" received registration status for an 18-page comic book titled Zarya of the Dawn — with the artwork generated by text-to-image engine Midjourney. It is not clear if this copyright is actually enforceable or not given the above rules for copyright registration.
Is it copyright infringement to use an AI tool to create a new image?
There was a copyright infringement case filed in the Central District of California that alleged an AI tool was used to commit copyright infringement of the Plaintiff's alleged copyrighted works. The Defendant filed a Motion to Dismiss alleging, among other things, that there was no evidence that the AI produced image was "substantially similar" to the original (scraped) image. Specifically, the Defendant argued:
“Only substantial similarity in protectable expression may constitute actionable copying that results in infringement liability.” Skidmore ex rel. Randy Craig Wolfe Trust v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020). Plaintiffs do not identify a single output image that has allegedly infringed any one of their copyrighted works, precluding any claim of substantial similarity that could result in copyright liability. See, e.g., Blizzard Ent., Inc. v. Lilith Games (Shanghai) Co., 149 F. Supp. 3d 1167, 1175 (N.D. Cal. 2015) (dismissing claim for copyright infringement where complaint “ma[d]e only general allegations” that allegedly infringing works were “derived from and substantially similar to” plaintiffs' works, without even identifying “representative acts of infringement”); Fuzzy Logic Prods., Inc. v. Trapflix, LLC, No. 15-cv-6203, 2015 WL 12791508, at *4 (C.D. Cal. Nov. 20, 2015) (dismissing copyright claim where complaint was “devoid of any comparisons of protectable elements”); see also Nat’l Bus. Dev. Servs., Inc. v. Am. Credit Educ. & Consulting, Inc., 299 F. App'x 509, 512 (6th Cir. 2008) (affirming dismissal where plaintiff's complaint failed to identify specific works by defendants that infringed on plaintiff's copyright); Flava Works, Inc. v. Clavio, No. 11-cv-5100, 2012 WL 2459146, at *2–3 (N.D. Ill. June 27, 2012) (dismissing in similar circumstances).
It appears at hearing on the motion that the judge was willing to grant the motion to dismiss, (without prejudice) to allow Plaintiff to re-plead its allegations. See Case 3:23-cv-00201.
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