Category: Copyright

As scholars Mark Lemley and Bryan Casey persuasively argue in their paper Fair Learning, we should generally permit generative AI tools that in effect learn from past works in ways that facilitate creation of new, distinct ones. While some claim that generative AI systems are simply engines for ‘collage’ or ‘plagiarism,’ copying previous expressions into new works, this isn’t an accurate description of how most tools work. Instead, generative AI extracts information that then is used to inform generation of new material; for instance, by looking at many pictures of dogs, it can extract information about what dogs look like, and can then help a user draw dogs, or by looking at many pieces of art labeled as Surrealist, it can help a user create new works in the style of Surrealism. In effect, these are tools that aid new creators in their learning and building on past works.

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In January, three visual artists filed a class-action copyright lawsuit against Stability AI, the startup that created Stable Diffusion. In February, the image-licensing giant Getty filed a lawsuit of its own. . . . There’s a real possibility that the courts could decide that Stability AI violated copyright law on a massive scale. . . . Building cutting-edge generative AI would require getting licenses from thousands—perhaps even millions—of copyright holders. The process would likely be so slow and expensive that only a handful of large companies could afford to do it. Even then, the resulting models likely wouldn’t be as good.

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As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking "whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine." [23] In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of "mechanical reproduction" or instead of an author’s "own original mental conception, to which [the author] gave visible form." [24] The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work.[25] This is necessarily a case-by-case inquiry.

If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.[26] For example, when an AI technology receives solely a prompt [27] from a human and produces complex written, visual, or musical works in response, the "traditional elements of authorship" are determined and executed by the technology—not the human user. Based on the Office’s understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.[28] For example, if a user instructs a text-generating technology to "write a poem about copyright law in the style of William Shakespeare," she can expect the system to generate text that is recognizable as a poem, mentions copyright, and resembles Shakespeare’s style.[29] But the technology will decide the rhyming pattern, the words in each line, and the structure of the text.[30] When an AI technology determines the expressive elements of its output, the generated material is not the product of human authorship.[31] As a result, that material is not protected by copyright and must be disclaimed in a registration application.[32]

In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that "the resulting work as a whole constitutes an original work of authorship." [33] Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.[34] In these cases, copyright will only protect the human-authored aspects of the work, which are "independent of" and do "not affect" the copyright status of the AI-generated material itself.[35]

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Regardless, as of this writing there are now five cases that may provide some clarity on this less frequently discussed but foundational issue of the unauthorized use of copyrighted materials as training data for AI (I use "AI" here as a shorthand which also includes text and data mining and machine learning). Each of these cases is unique, fact dependent, and likely, if fully litigated on the merits, to shed light on different aspects of copyright law.

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