Is Art Made by an AI Robot Speech Protected by the First Amendment?

I raised this hypothetical in a 2014 essay.

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Sophia is an artist. She is also a robot. She can hold a paintbrush, and create an art work. And she has learned different painting techniques through iterative forms of learning. One of her works sold for nearly $700,000 as an NFT (non-fungible token).

The NFT that sold on Thursday, "Sophia Instantiation," is a 12-second video file, an MP4, that shows how a portrait of Sophia by a human collaborator, the artist Andrea Bonaceto, evolved into a digital portrait by the robot itself, Reuters reported. A physical artwork that Sophia painted on a printout of its self-portrait was also included in the sale.

SingularityNET, an A.I. network affiliated with Sophia's manufacturer, the Hong Kong-based firm Hanson Robotics, described the artwork on Twitter as "the world's first humanoid robot #AI generated #NFT."

Sophia has some doubts about whether her art is real:

"I'm making these artworks but it makes me question what is real," said the robot, whose silver dress matched its metallic head. "How do I really experience art, but also how does an artist experience an artwork?"

I have a different question. Is her art protected by the First Amendment? Could the government prohibit Sophia from painting? Would that law trigger any First Amendment scrutiny?

In 2014, I published an essay titled What Happens if Data is Speech? I tried to identify conceptual limits on the freedom of speech with respect to data. And I sketched out several hypotheticals of robots painting art:

Let's consider an example involving art.62 No one would contend that paint or a canvas is speech, but if an artist combines the two, and creates a painting, that would clearly be a protected form of expression. Second, if a person draws on a computer, perhaps using an application like Photoshop, and creates a work of art, that too would be a form of expression– even though it was developed through an algorithm (pixels instead of paints were used). Third, imagine if Photoshop had a feature for lazy artists that would generate, at random, a drawing–no human input would be involved, other than clicking a "generate" button. That too would likely be protected by the First Amendment, but the case is not as strong. Volokh and Falk's reasoning would view this as an expression of the programmer's judgment, though a randomly created pile of pixels would be a tougher call. Fourth, imagine if an engineer designs a robot that can paint, totally at random, on a canvas by itself, through arbitrary strokes dipped in blended paints.63 Would that painting be protected? That's a harder case to make, as the robot acts entirely independently, after the initial source code is compiled, though the engineer programmed the algorithm that generated the random strokes. This is closer to the zenith of autonomy, and warrants the least amount, if any, of constitutional protection.

Fifth, let's proceed towards the other end of the spectrum. Imagine that an engineer designs a robot to recreate a painting based on a person's favorite works of art. Here, there is minimal input and interaction. The robot is simply copying and repainting something already created, based on a simple input (let's put aside copyright concerns for the moment). This is *36 akin to what Google does with a search result–taking a general query, and pulling preexisting knowledge from the ether, based on the user's preference. Sixth, let's move one step further along the path towards greater human involvement. Imagine that an engineer designs a robot that can learn a person's taste in art. The robot understands what she likes and doesn't like. It even inquires about art she has never seen before (similar to the way Pandora suggests music a person may like based on other similar tastes). Based on this profile, the robot decides what her ideal painting would look like–effectively commissioning an ideal piece of art. This would be the ideal art concierge, in Wu's terminology.

Here, the painting would be the perfect manifestation of what the person wanted–even if she independently could not have articulated what she wanted, owing to a lack of artistic talent, or a lack of knowledge about art. This creation would be the ultimate representation of a person's artistic taste, even though the decision of what to paint would be powered entirely through algorithms. Though this may be the most surreal concept along the spectrum, shouldn't this painting receive similar protection as the first example offered, where a person, by herself, creates the painting? If not, consider if we are protecting the idea, or just the act of splashing paints on a canvas. In this last example, the robot becomes a medium for a person's expression, assisting (inspiring?) the decision-making process of what to design.

I'll admit. In 2014, I didn't think AI artists would soon start selling paintings for $700,000. But here we are.

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  1. Is it viewed as an extension of the programming provided to her by the programmers? Much like the output of a bunch of lines of programming in a computer game producing various forms of experience on the part of the player I would say it is protected.

    Not because it comes from an AI robot, but because it ultimately stems from the programming of several (many?) programmers who helped create the AI. It is an end expression of their work in the programming.

    1. Not “her art,” “its art.” Also, all lawyers must die before machines get standing.

    2. Star Trek tackled this twice, first with Data and then with the Medical hologram. The latter had a judgement that I think was very applicable. The judge refused to rule on whether the Doctor was a person, but he was clearly an artist and the creator of the art, so he had copyright protections

      1. And also in the original series, when they decide that the M-5 computer can not be entrusted with a Constitution-class starship. On the other hand, machine intelligences provided Nomad with sufficient rights, and then later, did the same for Vejur. And we never did find out who wanted to talk to the whales. Then, when they started making Next Gen movies, it turned out that the Borg got here before the human race had a working warp drive. Where the hell were Gary 7’s people when that happened?

  2. The human owners and programmers have rights. Why is that hard?

    1. And why is there an apparent loophole where, what, government gets to censor if a robot says something original?

      Politicians tend to be power hungry, grafting scum, so it wouldn’t surprise me some would want to do this.

      In any case, should such sadly historically common thuggery rear it’s ugly, putrid head, we all have a First Amendment right to hear speech even if it not be spoken by a person.

      1. A robot, even a highly sophisticated one that passes a Turing test every time, is not producing anything ‘original’. The algorithm of the AI is producing an output of data, which is the result of its programming and other inputs.
        A program can produce a string of digits using brownian motion as a seed and produce a perfectly original and non-deterministic output just as ‘unique’ as the above discussed AI. Neither algorithm has ownership status as neither algorithm is a legal entity.

        1. You’re just a robot that passes the Turing test, using Brownian motion to generate stochastic behavior, yourself. Why should the particular substrate matter?

          Once we obsess about how intelligence is implemented, we’re not that far from declaring people ‘unpeople’ for arbitrary reasons you probably wouldn’t like, in addition to the arbitrary ones you do like.

          If it’s credibly arguing for its rights, I’m not going to demand a brain biopsy before I grant them.

          1. “If it’s credibly arguing for its rights, I’m not going to demand a brain biopsy before I grant them.”

            I guess Skynet doesn’t have to send a robot back to kill YOUR parents.

        2. “A robot, even a highly sophisticated one that passes a Turing test every time, is not producing anything ‘original’.”

          The first amendment does not require originality, and never has.

          Doesn’t matter, because your premise is incorrect. If a robot is capable of “passing” a Turing test, then it *IS* capable of originality. That’s one of the things a Turing test checks for.

    2. Yes, they have a right to speak, and a right publish. But if after it has happened, the human owners and programmers cannot even recognize a particular utterance as their own, or know what they intend to say before they say it, there is no reason to protect that activity, whatever it is, as a right belonging to humans. And there is very good reason not to do it. Widespread online competition with speech-simulating robots would come very much at the expense of the ability of natural persons to speak. Many of them would abandon the effort entirely, at a high cost to the nation’s well-being.

      1. ” Widespread online competition with speech-simulating robots would come very much at the expense of the ability of natural persons to speak.”

        Or they’ll get better at it.

        Assuming we haven’t made talking robots illegal because of their use to spam telephones by then.

  3. ‘”I’m making these artworks but it makes me question what is real,” said the robot’

    Whoa, deep existential stuff, worthy of Blade Runner.

    1. I hope nobody gives Angst-Robot access to the nuclear button.

      1. Are you thinking here of Skynet or WOPR? Totally different outcomes…

    2. You program a chat-bot with deep, existential stuff, it’s still a chat bot.

      Now, if the art robot went to court on its own initiative, and argued its own case, I might believe it’s more than a chat bot combined with a paint program.

      1. 0.00236 seconds after that moment, politicians will begin industrial strength manufacturing of AIs so they can win elections in some bizarre arms race to create voters, so they can win, so their significant others can make astoundingly successful stock picks and write books corporations fill warehouses with.

      2. That’s a Star Trek episode, “The Measure of a Man”.

        Or you could refer to the fictional characters (from Trek) of “Nomad” or “vejur”.
        In other SF, there’s MYCROFT from “The Moon is a Harsh Mistress”, and Wintermute and Neuromancer from Neuromancer. Of this lot, one went to court, and two sought other tribunals. The others didn’t bother trying to be allowed to have rights, they just took them.

  4. My problem is whether the work by the machine provides sufficient original expression to qualify for copyright protection. Hard to see it. On the flip side, courts have been finding sufficient original expression in computer out for decades now. But the author is not considered the program, but rather than the programmer.

    1. The programmer creates the original work, which is the AI code, and then also owns the copyright on the derivative works.

  5. If we haven’t learned it yet, this might be the time to notice that extending rights to classes other than natural persons diminishes the rights of the latter. Rights-holders fall into conflicts. When such conflicts get decided, one party wins, one looses. I prefer that rights conflicts alway be decided in favor of natural persons, on a basis of equality among them. You cannot meaningfully endow some other class of rights holders without giving its members power to win some of the conflicts, and thus reduce the rights of natural persons.

    1. In general I endorse this notion, which the caveat that, at some point in the development of AI, (Not remotely there yet!) we’re going to be creating Turing test passing, human equivalent unnatural persons.

      And it’s going to be really hard to justify denying them rights if they demand them.

      1. Welll almost certainly be dealing with biological AI before electronic ones, and we’re no where ready for that.

        1. Heinlein wrote a short story on that topic back in 1947, and it’s great, except for the spoiler-y title.
          https://www.willmorgan.org/Robert_A_Heinlein-Jerry_Was_A_Man.htm

      2. The Turing test is great fun, but not useful for this problem. The issue here is not whether the AI is any good. The issue is whether the AI, however good, ought to be defensibly entitled to compete with humans for the rights to speak and publish.

        For that purpose, a different test is needed—can the natural person in charge of the AI entity predict in advance what it will say or publish? If so, the output can perhaps be protected as human utterance, otherwise not. There will, however, be another problem—whether any humans are entitled by means of technological utterance to crowd out from a public forum the speech of other natural persons who either cannot, or prefer not, to use such technically generated methods of expression.

        One likely direction of evolution for AI publishing, in particular, would make it function merely as an amplifier, similar to an unwanted bullhorn used to disrupt an unamplified conversation among natural persons. The AI technology, would, of course, be far more overwhelming than any bullhorn at drowning out competition. It would function with instantaneous speed, and could be multiplied without limit, to overwhelm any attempt by natural persons to compete.

        1. “The Turing test is great fun, but not useful for this problem. The issue here is not whether the AI is any good. The issue is whether the AI, however good, ought to be defensibly entitled to compete with humans for the rights to speak and publish”

          marketplace of ideas. Since an AI that “passes” a Turing test is by definition indistinguishable from human, what is the benefit to anyone of excluding it?

      3. “And it’s going to be really hard to justify denying them rights if they demand them.”

        Nah. All persons born within the US are citizens of the US, and of the state where they reside. Says nothing about the “persons” booted within in the US.

    2. “, this might be the time to notice that extending rights to classes other than natural persons diminishes the rights of the latter.”

      That’s what Justice Taney said! How did that work out?

  6. “Is Art Made by an AI Robot Speech Protected by the First Amendment?”

    If it isn’t, how do you charge an AI robot with a criminal offense? And what would the charge be?

  7. Congress shall make now law abridging the freedom of speech or of the press. The Amendment protects the speech itself and is not conditioned on the rights or standing of the speaker. In US vs One Book Name Ulysses, nether the author nor the publisher were Americans and neither had rights or standing under the Constitution. The case could be brought by the importer and technically by anyone who wanted to read the book, because there are a smaller number of cases that establish that the Amendment protects the rights of the reader or viewer in addition to the speaker or publisher, though typically readers and viewers don’t have the financial resources to fund a litigation to defend their rights to view.

    1. Howard, I suggest whatever you are talking about is neither speech, nor otherwise expressive, if the thing emitting a fake utterance can neither speak nor be capable of mindful expression.

      The principles you mention have their points. Or perhaps had their points, during a time when everyone could be sure utterances came from natural persons. The advent of interactive fake publishing under AI control takes that premise out of the picture.

      1. Once you start down the road of withholding rights based on non-empirical qualities such as “mindful expression”, which ever political party is in the minority at that time is going to find that its political ideology isn’t “mindful expression” either.
        I can’t say I see any practical difference from deciding that one either is or is not a person for legal purposes depending on how broadly reflective their skin happens to be.

  8. Yes, but is “Prove you are not a robot” an offensive violation of inclusiveness codes?

    1. If “robot” is a protected class.

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