Note: If you’re using AI tools to create art, in any form, you don’t own the copyright to that work, which means that anybody can use it, for any purpose, if they choose, without giving you money or even credit.
That’s been reinforced by a new ruling in the case of an AI poetry author who sought to seek damages for the reuse of his work.
According the filing, claimant Stephen Thaler cannot be credited as the author of his AI generated poetry because the author of such is not a human being.
Thaler had sought to challenge the applicability of current copyright law, which he claims is not keeping up with the pace of technological innovation. But the Court of Appeals for the District of Columbia Circuit unanimously agreed with an earlier ruling from the Copyright Office that Thaler’s creations are not copyright applicable.
As explained by Judge Patricia Millett:
“Because many of the Copyright Act’s provisions make sense only if an author is a human being, the best reading of the Copyright Act is that human authorship is required for registration.”
The three judge panel also noted that machines cannot be granted copyright because they “do not have lives”, meaning that the length of any copyright operability cannot be measured.
The judges also noted that copyright cannot be transferred to surviving family, in accordance with current statutes, meaning that there’s no legal basis to grant such to a digital entity.
As noted, the ruling reinforces the fact that wholly AI generated work cannot be attributed to a human creator, and therefore cannot be copyright protected. Which the U.S. Copyright Office has repeatedly ruled, in a range of cases.
According to the Copyright Office, the variability here is human intervention, and the degree to which human control plays a part in the creative process.
And generative AI, which only uses text prompts, doesn’t make the cut:
“In many circumstances [AI] outputs will be copyrightable in whole or in part – where AI is used as a tool, and where a human has been able to determine the expressive elements they contain. Prompts alone, however, at this stage are unlikely to satisfy those requirements.”
So if you’re only creating and refining images within generative AI processes, you won’t be able to legally take ownership of that work.
Which could have implications for a range of art projects.
Will that law be revised, given the increasing use of AI creation elements? It seems unlikely, but maybe, once Hollywood studios start putting more reliance on AI, the additional pressure of big business interests will force a shift in approach.
But right now, if you’re using AI images, know that they can be re-used, by anyone, and you have no legal standing.
