Copyrightability of AI creations

One of the many fascinating things about AI is whether AI creations can be copyrighted and, if so, by whom. Under traditional copyright analysis, the human(s) that made some contribution to the creative work own the copyright by default. If there is no human contribution, there is no copyright. See, for example, the so-called “monkey selfie” case in which a monkey took a selfie and the photographer that owned the camera got no copyright in the photo.

But when an AI creates a work of art, is there human involvement? A human created the AI, and might have fiddled with its knobs so to speak. Is that sufficient? The U.S. Copyright Office is concerned about this. One question they are asking is this:

2. Assuming involvement by a natural person is or should be required, what kind of involvement would or should be sufficient so that the work qualifies for copyright protection? For example, should it be sufficient if a person

(i) designed the AI algorithm or process that created the work;

(ii) contributed to the design of the algorithm or process;

(iii) chose data used by the algorithm for training or otherwise;

(iv) caused the AI algorithm or process to be used to yield the work;

or (v) engaged in some specific combination of the foregoing activities? Are there other contributions a person could make in a potentially copyrightable AI-generated work in order to be considered an ‘‘author’’?

Request for Comments on Intellectual Property Protection for Artificial Intelligence Innovation

No one really knows the answer to this because (1) it is going to be very fact intensive (lots of different ways for humans to be involved or not involved); and (2) it feels weird to do a lot of work or spend a lot of money to build an AI and not be entitled to copyright over its creations.

In any case, these issues are going to be litigated soon. A reddit user recently used a widely-available AI program called StyleGAN to create a music visualization. And although the underlying AI was not authored by the reddit poster, the output was allegedly created by “transfer learning with a custom dataset of images curated by the artist.”

Does the reddit poster (aka self-proclaimed “artist”) own a copyright on the output? Good question.