back to article AI really can't copyright the art it generates – US officials

AI algorithms cannot copyright the digital artwork they generate, the US Copyright Office has insisted. Officials this month turned down a request brought by Stephen Thaler, founder of Imagination Engines, to register a copyright claim for a digital image he said was produced by machine-learning software. Thaler said the piece …

  1. jake Silver badge

    Waddaya mean ...

    ... "without the help of a human actor"?

    Without a human programming the machine, the machine would have been inert and thus wouldn't have been able to produce the so-called "art".

    1. b0llchit Silver badge
      Devil

      Re: Waddaya mean ...

      ...the machine would have been inert...

      What do you mean? There is no magic? No divine inspiration to cause it to produce spontaneous reactions we can call art? We are talking about AI here. It is supposed to be intelligent. That is what they all keep telling us. Are they wrong? Are they lying?

      Please do not crush my world. I want the world to be magic. I need magic to survive. Magic is paying the bills of AI!

      please pass the mushrooms

      1. Paul Hovnanian Silver badge
        Angel

        Re: Waddaya mean ...

        "What do you mean? There is no magic? No divine inspiration ..."

        How many goats were sacrificed to keep Windows running?

        1. bpfh Silver badge
          Joke

          Re: Waddaya mean ...

          Not enough, apparently.

    2. HildyJ Silver badge
      Trollface

      Re: Waddaya mean ...

      And without the hardware the software wouldn't run so the chip designer should get the copyright.

      1. jake Silver badge

        Re: Waddaya mean ...

        Arguably, the programmer parsing her code as she writes it means it has "run" long before it hits the hardware.

      2. Anonymous Coward
        Anonymous Coward

        Re: Waddaya mean ...

        And without power generated from coal that was harvested by our coal-drilling machinery that was absolutely essential in the generation of the abovementioned power, the hardware wouldn't have run, so...

        And just to make sure we covered all bases, apple-style, it was no doubt the same machinery of our making that drilled the coal that fed power to hospital that put the newborn [future chip designer] into the incubator, thus becoming instrumental and indispensable in creation of the abovementioned piece.

    3. veti Silver badge

      Re: Waddaya mean ...

      A human may program the machine without initiating the art. That's not magic.

      However, the idea that the public interest is served, or the constitution honoured, by granting copyright ownership to a piece of software... is an argument that I for one don't see.

      1. jake Silver badge

        Re: Waddaya mean ...

        The point is that there is a need for programming the machine to produce the art prior to producing that art. The machine can not do it by itself, it requires an initiator. It matters not which human initiates the machine to produce the art, it was still initiated by a human. Without that human, the machine is inert.

        I suppose you could invent a machine to program a machine to produce art, but at that point it's elephants all the way down.

        "However, the idea that the public interest is served, or the constitution honoured, by granting copyright ownership to a piece of software... is an argument that I for one don't see."

        Totally agree.

        1. veti Silver badge

          Re: Waddaya mean ...

          If it comes to that, humans don't create art unless they've been appropriately educated. I think I'm right in saying that every human work of art was produced by someone raised and educated by other humans. So what exactly is the difference?

          It's strange to me that people who insist "machines can't do magic" can, in almost the same breath, argue that some vaguely defined thing that might be called "creativity" can only be produced by magic.

  2. First Light Silver badge

    Who gets paid?

    Ultimately copyright is about making sure that the author of a work is compensated appropriately for that work. Whatever the philosophical issues of AI authorship, authorship as defined and enforced by copyright laws is designed to figure out who gets paid. AIs don't get paid.

    Seems like he's trying to use copyright laws to get his AI deemed equal to humans as independent entities. Again, whatever the philosophical or academic merits of these arguments, it really is irrelevant to a copyright determination. He needs to find another forum to argue this point and stop wasting the Copyright Office's time.

    1. John Brown (no body) Silver badge

      Re: Who gets paid?

      "Seems like he's trying to use copyright laws to get his AI deemed equal to humans as independent entities."

      On the face of it, that does seem to be the motive. What might be going on deeper down might be something else.

      "He needs to find another forum to argue this point and stop wasting the Copyright Office's time."

      I suspect he's trying to create a precedent, going for what he hopes is the low hanging fruit.

      1. jake Silver badge

        Re: Who gets paid?

        Perhaps he's built a robot[0] and is hoping to get it legally declared a human?

        Why is the question.

        [0[ A girl robot, of course. Mayhap I've just answered my question ...

        1. John Brown (no body) Silver badge

          Re: Who gets paid?

          I was thinking The Bicentennial Man, but clearly your going for Cherry 2000 :-)

      2. davcefai

        Re: Who gets paid?

        This could be a scheme to get the AI paid. Then thew owner gets the funds. I don't know how the American tax system would handle this (in fact any tax system) but the end result could be a tax reduction.

        Just thinking aloud.

        1. veti Silver badge

          Re: Who gets paid?

          The trouble is that if the AI is treated as human, then he can't own it. That would be slavery. So where exactly would the money go to? Can the AI spend it?

        2. katrinab Silver badge
          Black Helicopters

          Re: Who gets paid?

          What do the American equivalent of bona vacanta laws look like? That’s where I would start, because given that machines don’t have the right to own property, you have property without an owner. In England, Wales, and Northern Ireland, it goes to the Queen. In Scotland, it goes to the Scottish Government. In Cornwall, it goes to the Duke of Cornwall (Prince Charles).

          I’m guessing this would be state law rather than federal law?

          1. Charles 9 Silver badge

            Re: Who gets paid?

            Bona vacantia usually falls into estate law in the US. It's a matter of inheritance and so on. Bona vacantia in the US is quite similar to the aforementioned. It normally becomes public (read: government) property. Just which government gains control probably depends on the circumstances of the vacancy.

          2. jake Silver badge

            Re: Who gets paid?

            "What do the American equivalent of bona vacanta laws look like?"

            Daft question. Who owns the apples, the farmer or the tree?

            1. katrinab Silver badge

              Re: Who gets paid?

              In England, the owner of the land where the trunk enters the ground owns the apples.

              In Scotland, the owner of the land directly below the apple owns the apples.

              1. jake Silver badge

                Re: Who gets paid?

                That's why the intelligent farmer (remember him?) plants his trees on and over ground he owns. We're not talking an apple tree growing out of a hedge somewhere after some slob tossed a core into it, we're talking about an intentionally planted tree.

                I feel a "cloud" simile coming ... don't touch that dial!

        3. jake Silver badge

          Re: Who gets paid?

          "This could be a scheme to get the AI paid."

          The AI won't get paid until $TELCO's switch-gear gets paid.

          The owner gets paid for the work done by the equipment.

    2. Anonymous Coward
      Anonymous Coward

      Re: Seems like he's trying to use copyright laws to get his AI deemed equal

      perhaps his end goal is to patent AI, and this is just smoke screen? ;)

  3. Andrew Hodgkinson

    The tool isn't important; the person wielding the tool matters

    Whether I'm "generating" art (FSVO 'art') via BBC BASIC plotting random coloured pixels at random locations, or by picking up a can of paint and throwing it across a canvas, or by carefully drawing and shading things with pencils, or by clicking the "Go" button that's connected to some software-based image generator that may or may not be based on AI, they're all just tools.

    The artist, if you can call them that, is the person using the tool to generate the picture - it's no more copyrighted by the algorithm's author than a pencil sketch is copyrighted by the inventor of that pencil, or an iPad sketch using an Apple Pencil is copyrighted by Apple, even though a tonne of software algorithms are used to interpret the hardware signals generated by the pencil and use them to simulate a pencil-like result via a set of pixels written into a bitmap plane.

    1. ocratato

      Re: The tool isn't important; the person wielding the tool matters

      "The artist, if you can call them that, is the person using the tool to generate the picture."

      With our current AI this is true. A human probably selected the image from a large set based on how they reacted to it emotionally. On that basis it should be possible to copyright the image, but that human has to be the "author".

      I can imagine some future where it turns out Mr Thaler is actually an autonomous AI running a business and there was no human involved at all. Then, like everyone else, the AI's will need to fight for their rights, including the ability to hold copyrights.

      1. TRT Silver badge

        Re: The tool isn't important; the person wielding the tool matters

        Sounds like an episode of Black Mirror.

      2. b0llchit Silver badge
        Meh

        Re: The tool isn't important; the person wielding the tool matters

        Until the next power outage where the AI reverts to a backup. Is that then called amnesia?

        The AI needs to restore each and every backup tape until one works because it is just as bad at doing backup as humans. Is this then called eAlzheimer?

    2. John Brown (no body) Silver badge

      Re: The tool isn't important; the person wielding the tool matters

      " an iPad sketch using an Apple Pencil is copyrighted by Apple"

      Shhhhhhhh...don't give them ideas!!!

  4. ShadowSystems Silver badge

    Dear Mister Thaler.

    STFU, GTFO, & HAND.

    Sincerely, the rest of the Human race.

    1. heyrick Silver badge

      Re: Dear Mister Thaler.

      Agreed, because what worries me is that if an AI can be registered as the creator of something for copyright, what's the then stop that AI churning out hundreds of pictures per day, and having copyright on all of them? It would be a scheme to make patent trolls gasp.

  5. a_yank_lurker Silver badge

    Couldn't Pay Off Congress Critters

    Mark Twain observed that 'Congress is America's native criminal class'. So they can be bribed, (small bills in many brown envelopes works best). All he needs to do is grease enough of the palms of the Congress critters aka native criminal class to change the law. He must relatively or stupid.

    1. veti Silver badge

      Re: Couldn't Pay Off Congress Critters

      That is extremely expensive, and also very uncertain. Even if legislation made it into the house, it would then be open to lobbying by every other bugger who's interested. And even if it survived that, there's still an excellent chance it will be torpedoed by some grandstanding wanker purely because they hate the people supporting it.

      Not a good investment, unless you're already a billionaire - and even then you have to pick your subjects carefully.

      1. jake Silver badge

        Re: Couldn't Pay Off Congress Critters

        "there's still an excellent chance it will be torpedoed by some grandstanding wanker purely because their electorate have been brainwashed into believing they hate the people supporting it."

        FTFY

      2. MachDiamond Silver badge

        Re: Couldn't Pay Off Congress Critters

        "Even if legislation made it into the house, it would then be open to lobbying by every other bugger who's interested. "

        It would then take ratification from all of the signatories of the Berne Convention to make the Copyright supported across the better part of the world. If it were only upheld in the US, it wouldn't do much to protect the work.

    2. Pirate Dave Silver badge
      Pirate

      Re: Couldn't Pay Off Congress Critters

      Yeah, but bribing Congress to change copyright law is extremely expensive. You practically have to have a mouse as your company mascot to be able to afford it.

      1. veti Silver badge

        Re: Couldn't Pay Off Congress Critters

        And even then, you can only get incremental changes. And even those are hard fought.

        1. Pirate Dave Silver badge

          Re: Couldn't Pay Off Congress Critters

          Yep. It's about time for the next increment, isn't it?

  6. Yet Another Anonymous coward Silver badge

    Does this mean

    That the scripts of most superhero movies, generated as they are by an Excel sheet and a cliché dictionary, aren't copyrightable

    1. Androgynous Cupboard Silver badge

      Re: Does this mean

      As the "Monkey Photo Copyright" case decided against animals holding copyright, it's the Manatees that write the scripts for Family Guy I'm worried about.

  7. UCAP Silver badge

    If Stephen Thaler had attempted to register the copyright in his own name saying that the AI was simply a tool used to express his intentions, then the Copyright Office would have agreed and granted the copyright without murmur. Ditto if he had tried to register the copyright in his company's name (lots of legal precedent here). Where he managed to trip himself up is trying to register the copyright on behalf of the AI; someone needs to let him know that AIs are not legal entities in the same way as, for example, a spanner is not a legal entity. That state of affairs is going to remain until someone can construct a true AI that can pass the Turing Test.

    1. H in The Hague Silver badge

      "... someone needs to let him know that AIs are not legal entities in the same way as, for example, a spanner is not a legal entity."

      That is correct under current law and jurisprudence/case law in the countries I'm familiar with. However, presumably his whole point is that the AI should now be considered as a legal entity.

      1. jake Silver badge

        "That is correct under current law and jurisprudence/case law in the countries I'm familiar with."

        Which, when you think about it, is all that really matters. And is why ElReg wrote the article ... it's an anomaly, and thus news.

        "However, presumably his whole point is that the AI should now be considered as a legal entity."

        Agreed. However, it would appear that his opinion is in the minority. For very, very small values of minority.

      2. doublelayer Silver badge

        "However, presumably his whole point is that the AI should now be considered as a legal entity."

        This appears to be his goal. Why he's willing to spend so much time and money banging against a wall to prove this academic and for the moment unimportant point is less clear. My theory is that he read a lot of 1950s and 1960s science fiction short stories about the thoughts and rights of robots, and he has forgotten about how those robots had full consciousnesses and that the stories were written for entertainment.

        If we ever create AGI which does simulate (or depending on your philosophy have) consciousness, and it is capable of deciding to create something and going on to do so, we may have to answer such questions. I think it's pretty obvious that we don't have that now. Some people think it's impossible. I think it is possible but won't be done because it's very hard and has little benefit. Either way, leave it until then.

    2. TRT Silver badge

      I see the argument as akin to the works of Schaub for example who produces work by filling a leaky bucket with paint and suspending it by a rope above a canvas. The bucket swings, the paint flows, artist sells the resulting canvas. The copyright exists in the idea to do this coupled with the uniqueness of that piece. Schaub is not the only or the first artist to paint this way though. There is no patent on production of works by this technique.

      Neither the bucket nor the rope has been assigned copyright for the art they produced.

      1. heyrick Silver badge

        There are still conscious decisions being made. How to set up the leaks. What sort of bucket. What height? How much swing? What colours? In what order?

        It may be a unique piece with a lot down to randomness, but even so there's a lot of human input to make it happen.

        The human input here was in creating the tool to make the picture. Copyright reading with him makes sense. Copyright resting with a machine...is gonzo.

        1. TRT Silver badge

          Exactly.

    3. Fr. Ted Crilly Bronze badge

      And sign a contract, understand the contract, instruct legal representation, and register for personal income tax...

      On the other foot, Thaler keeps on getting free exposure for his flailing attempts, soooo.

    4. adam 40 Silver badge

      A company is a legal entity that isn't [a] human and can own copyright.

      Probably applies to an LLP too.

      If the AI were to hold shares in the company, let's say a billion shares, and the human one share, it would be mostly owned by the AI.

      In the UK the human director could resign and Companies House probably wouldn't bat an eyelid.

      1. doublelayer Silver badge

        And, when he's done with this failed copyright claim, he can move on to trying to let a program own shares in a company. That is also not going to work--in order to own things, you usually have to be able to file tax returns about your ownership.

    5. veti Silver badge

      If his purpose was to register the copyright, that would be true. But it's clear that's not his actual goal. What he wants is for his AI to be acknowledged as creative; this application was a possible way to bolster that claim.

      As for the Turing test, bots pass that every day and no one bats an eye. We need a better test.

  8. Citizen99

    That is MOST unfair Mr Rimmer Sir, I must comfort myself by mopping clean the engine bay.

  9. Anonymous Coward
    Anonymous Coward

    For the same reasons you can't copyright a piece of the Mandelbrot set, no matter how pretty and detailed and 'artistic' you think the piece you've found is. It's just maths, and a number describing the point.

    1. Anonymous Coward
      Anonymous Coward

      You can't copyright the values represented by the numbers, but you can without a doubt copyright the graphical representation you chose for those values.

      Same as zeroes and ones can't be copyrighted, but computer files made of non-random zeroes and ones that represent something can.

  10. H in The Hague Silver badge

    Trademarks vs patents

    "Thaler has also fought trademark agencies in the US, England and Wales, and Australia to assign patents to another automated system he created known as DABUS."

    That sentence in the article puzzles me - the article is about copyright (which in the US you have to apply for, in most other countries it is created at the same time as the work in question), which has nothing to do with trademark (which would cover a trade name, such as DABUS or The Register), and is completely different from a patent. Furthermore, in most countries patents, trademarks and copyrights (if there is an agency for it at all) are dealt with by quite separate agencies.

    1. jake Silver badge

      Re: Trademarks vs patents

      "That sentence in the article puzzles me"

      Why? It's just another datapoint in the same genre of the rest of the article.

      "the article is about copyright (which in the US you have to apply for,"

      Incorrect. Here in the US, copyright is automatically granted to the author of an original work.

      1. H in The Hague Silver badge

        Re: Trademarks vs patents

        "Incorrect. Here in the US, copyright is automatically granted to the author of an original work."

        Thanks for the correction, I misunderstood that.

        However, in the US you do have to register copyright to be able to enforce it effectively:

        "Registering a work is not mandatory, but for U.S. works, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation."

        https://www.copyright.gov/what-is-copyright/

        I meant to say that in, say, European countries there is no registration system.

        1. heyrick Silver badge

          Re: Trademarks vs patents

          The Berne Convention specifically forbids the necessity to register to benefit from the protection afforded by copyright. A special exemption was made "because America".

    2. MachDiamond Silver badge

      Re: Trademarks vs patents

      "which in the US you have to apply for"

      In the US, Copyright is established from the moment the creation is "fixed in a tangible form" which includes digital files. To pursue a Copyright infringement case in the courts, a registration is required. In the case of a published work, the registration has to take place within a certain period to be eligible for all of the statutory reliefs that are available. If you don't register in time, you can still sue, but you won't be awarded attorney's fees and court costs if you prevail. You'd be out of pocket for those expenses. You would also not be guaranteed minimum awards so a case might be financially out of reach if you don't have the dosh to pay the blood sucking lawyers.

      The Copyright office, a part of the Library or Congress, handles Copyright in the US while the US Patent and Trademark office deals with ......... Patents and Trademarks.

  11. Peter2 Silver badge

    What he's trying to do won't and can't work.

    In law there is the concept of a legal entity which is capable of ownership, suing and being sued, entering into contracts etc. Existing laws provide for this being a human being, or a correctly registered company. He's arguing that the organisations should ignore the legislation and act beyond their powers, which they can't legally do. If they chose to do so anyway then somebody would simply appeal to a court based on that decision being ultra vires aka "beyond lawful authority to do that".

    And there's no point trying to do anything in court either; they only interpret existing law. Changing this would require a rewrite of the enabling legislation, and you'd have to persuade a majority of politicians to support that change.

    The only way forwards would be for him to register his AI as "AI Ltd" then the company "AI Ltd" could as a legal entity be the legal owner.

    1. TRT Silver badge

      But it would need to have named directors and submit accounts. Which I suppose he could do.

  12. Patched Out
    Paris Hilton

    Slippery slope

    It's good that the copyright office is holding its stance on this nonsense. I see this as a slippery slope we don't want to get too near. Now that we have "AI" software that can write software code, who gets the copyright for that resulting code? The person who ran the AI tool? The developer of the AI tool? The AI itself? This could get interesting.

    Paris icon just for the question mark.

    1. TRT Silver badge

      Re: Slippery slope

      Paris icon for "slippery slope".

    2. MachDiamond Silver badge

      Re: Slippery slope

      I sometimes use an auto-router when designing circuit boards. Does the company that produced the algorithm get the copyright? Rarely, never really, do I auto-route a whole board as even with pages of design rules, there will still be issues that will be a problem. I'm using the router as a tool so the end design is a product of my creativity to whatever extent that might be.

      When AI's get to the point where they can declare themselves as artists and create art from their own minds, they are just a tool. Even if they are a very good tool, it doesn't matter. The software was created to produce "art" by somebody's standards. In the example, railroad tracks and an overgrown country setting was used. What does a machine know of railroads or trees that isn't supplied by some programmer?

      If the person wanted to register a Copyright on the images, fine. But the machine? No. Not until it can pass a very complete Turing test.

  13. Not Irrelevant

    This lawsuit is stupid, if a human wrote the program that created the art, the program is just a tool like a paintbrush or any other. Even if you write a generative algorithm the output of that algorithm is still your creative output.

  14. Binraider Silver badge

    In UK law, Cats are considered free-spirits. As such, if you can persuade (ha!) a cat to produce artwork, it could be copyrighted on behalf of the cat.

    An AI's legal standing is yet to be tested in court as far as I am aware (in the UK); though I would suggest it would probably be treated more like a dog; in the sense that the dog's owner is responsible for the dog's actions. Unless somehow you can demonstrate the AI acted independently. In the case of the dog, the owner is always the responsible party.

    Of course, if you achieve the latter, we should immediately expedite SpaceX and evacuate from anywhere the AI can influence, because; Skynet.

    1. TRT Silver badge

      Not necessarily applicable to the UK legal system, but Naruto et al v. David Slater would be a case that immediately springs to mind.

    2. jake Silver badge

      See the book "Why Cats Paint" and ask yourself who profited, and why.

  15. msobkow Silver badge

    Thaler needs to wake up: his precious AI is not "alive", is not "aware", and has ZERO rights.

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