No Copyright for Certain AI-Generated Works, but Maybe Yes for Others, if Prompts are Detailed Enough

The AI-generated artwork.

 

From Thaler v. Perlmutter, decided Friday by Judge Beryl Howell (D.D.C.):

Plaintiff Stephen Thaler owns a computer system he calls the "Creativity Machine," which he claims generated a piece of visual art of its own accord. He sought to register the work for a copyright, listing the computer system as the author and explaining that the copyright should transfer to him as the owner of the machine. {In his application, he identified the author as the Creativity Machine, and explained the work had been "autonomously created by a computer algorithm running on a machine," but that plaintiff sought to claim the copyright of the "computer-generated work" himself "as a work-for-hire to the owner of the Creativity Machine."}The Copyright Office denied the application on the grounds that the work lacked human authorship, a prerequisite for a valid copyright to issue, in the view of the Register of Copyrights. Plaintiff challenged that denial …..

Thaler sought review of the Copyright Office denial, but the court held that Thaler indeed couldn't be protected given his claim that the work was "autonomously created" by the program. Authorship is for humans, the court held (though corporations, government entities, and the like can own copyrights because they were created by the groups' human employees).

Yet the court reserved the question whether the user of an AI program could own the copyright in the output because the user contributed enough to the output in the form of sufficiently detailed prompts and other items that would guide the output:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an "author" of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more….

This case, however, is not nearly so complex. While plaintiff attempts to transform the issue presented here, by asserting new facts that he "provided instructions and directed his AI to create the Work," that "the AI is entirely controlled by [him]," and that "the AI only operates at [his] direction"—implying that he played a controlling role in generating the work—these statements directly contradict the administrative record…. Here, plaintiff informed the Register that the work was "[c]reated autonomously by machine," and that his claim to the copyright was only based on the fact of his "[o]wnership of the machine." The Register therefore made her decision based on the fact the application presented that plaintiff played no role in using the AI to generate the work, which plaintiff never attempted to correct. See First Request for Reconsideration at 2 ("It is correct that the present submission lacks traditional human authorship—it was autonomously generated by an AI."); Second Request for Reconsideration at 2 (same). Plaintiff's effort to update and modify the facts for judicial review on an APA claim is too late. On the record designed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No.

Note also the court's discussion earlier of some earlier precedents, where a non-human-generated final work (or a supposedly non-human-generated final work) was held to be protected by copyright because of a human's contributing enough creative decisions to guide the creation of the work:

The human authorship requirement has also been consistently recognized by the Supreme Court when called upon to interpret the copyright law. [In Burrow-Giles Lithographic Co. v. Sarony (1884)], the Court's recognition of the copyrightability of a photograph rested on the fact that the human creator, not the camera, conceived of and designed the image and then used the camera to capture the image. The photograph was "the product of [the photographer's] intellectual invention," and given "the nature of authorship," was deemed "an original work of art … of which [the photographer] is the author." …

Accordingly, courts have uniformly declined to recognize copyright in works created absent any human involvement, even when, for example, the claimed author was divine. The Ninth Circuit, when confronted with a book "claimed to embody the words of celestial beings rather than human beings," concluded that "some element of human creativity must have occurred in order for the Book to be copyrightable," for "it is not creations of divine beings that the copyright laws were intended to protect." Urantia Found. v. Kristen Maaherra (9th Cir. 1997) (finding that because the "members of the Contact Commission chose and formulated the specific questions asked" of the celestial beings, and then "select[ed] and arrange[d]" the resultant "revelations," the Urantia Book was "at least partially the product of human creativity" and thus protected by copyright) ….

A claim that the user of an AI program "chose and formulated the specific [prompts given to the program]" might thus suffice to give the user copyright in the resulting work—at least if the prompts are sufficiently detailed to constitute the contribution of "expression" rather than just of an "idea"—though query whether some further post-processing (the analog of "select[ing] and arrang[ing]" the output) would be required.

For a seemingly broader rejection of AI authorship, see the Zarya of the Dawn letter from the Copyright Office:

It is relevant here that, by its own description, Midjourney does not interpret prompts as specific instructions to create a particular expressive result. Because Midjourney "does not understand grammar, sentence structure, or words like humans," it instead converts words and phrases "into smaller pieces, called tokens, that can be compared to its training data and then used to generate an image." …{To obtain the final image, [Kashtanova] describes a process of trial-and-error, in which she provided "hundreds or thousands of descriptive prompts" to Midjourney until the "hundreds of iterations [created] as perfect a rendition of her vision as possible."}

Based on the record before it, the Office concludes that the images generated by Midjourney contained within the Work are not original works of authorship protected by copyright. Though she claims to have "guided" the structure and content of each image, the process described in the Kashtanova Letter makes clear that it was Midjourney—not Kashtanova—that originated the "traditional elements of authorship" in the images….

Rather than a tool that Ms. Kashtanova controlled and guided to reach her desired image, Midjourney generates images in an unpredictable way. Accordingly, Midjourney users are not the "authors" for copyright purposes of the images the technology generates. As the Supreme Court has explained, the "author" of a copyrighted work is the one "who has actually formed the picture," the one who acts as "the inventive or master mind." A person who provides text prompts to Midjourney does not "actually form" the generated images and is not the "master mind" behind them. Instead, as explained above, Midjourney begins the image generation process with a field of visual "noise," which is refined based on tokens created from user prompts that relate to Midjourney's training database. The information in the prompt may "influence" generated image, but prompt text does not dictate a specific result. Because of the significant distance between what a user may direct Midjourney to create and the visual material Midjourney actually produces, Midjourney users lack sufficient control over generated images to be treated as the "master mind" behind them.

The fact that Midjourney's specific output cannot be predicted by users makes Midjourney different for copyright purposes than other tools used by artists. Like the photographer in Burrow-Giles, when artists use editing or other assistive tools, they select what visual material to modify, choose which tools to use and what changes to make, and take specific steps to control the final image such that it amounts to the artist's "own original mental conception, to which [they] gave visible form." Users of Midjourney do not have comparable control over the initial image generated, or any final image. It is therefore understandable that users like Ms. Kashtanova may take "over a year from conception to creation" of images matching what the user had in mind because they may need to generate "hundreds of intermediate images."

Nor does the Office agree that Ms. Kashtanova's use of textual prompts permits copyright protection of resulting images because the images are the visual representation of "creative, human-authored prompts." Because Midjourney starts with randomly generated noise that evolves into a final image, there is no guarantee that a particular prompt will generate any particular visual output. Instead, prompts function closer to suggestions than orders, similar to the situation of a client who hires an artist to create an image with general directions as to its contents. If Ms. Kashtanova had commissioned a visual artist to produce an image containing "a holographic elderly white woman named Raya," where "[R]aya is having curly hair and she is inside a spaceship," with directions that the image have a similar mood or style to a "Star Trek spaceship," "a hologram," an "octane render," "unreal engine," and be "cinematic" and "hyper detailed," Ms. Kashtanova would not be the author of that image. Absent the legal requirements for the work to qualify as a work made for hire, the author would be the visual artist who received those instructions and determined how best to express them. And if Ms. Kashtanova were to enter those terms into an image search engine, she could not claim the images returned in response to her search were "authored" by her, no matter how similar they were to her artistic vision.

The Office does not question Ms. Kashtanova's contention that she expended significant time and effort working with Midjourney. But that effort does not make her the "author" of Midjourney images under copyright law. Courts have rejected the argument that "sweat of the brow" can be a basis for copyright protection in otherwise unprotectable material….