Brushstroke Battles: Unraveling Copyright Challenges With AI Artistry

Sara Seid, MJLST Staffer

Introduction

Imagine this: after a long day of thinking and participating in society, you decided to curl up on the couch with your phone and crack open a new fanfiction to decompress. Fanfiction, a fictional work of writing based on another fictional work, has increased in popularity due to the expansion and increased use of the internet. Many creators publish their works to websites like Archive of Our Own (AO3), or Tumblr. These websites are free and provide a community for creative minds to share their creative works. While the legality of fanfiction in general is debated, the real concern among creators is regarding AI-generated works. Original characters and works are being used for profit to “create” works through the use of Artificial Intelligence. Profits can be generated from fanfiction through the use of paid AI text generators to create written works, or through advertisements on platforms. What was once a celebration of favorite works has become tarnished through the theft of fanfiction by AI programs.

First Case to Address the Issue

Thaler v. Perlmutter is a new and instructive case on the issue of copyright and AI-generated creative works – namely artwork.^[1] The action was brought by Stephen Thaler against the Copyright Office for denying his application for copyright due to the lack of human authorship.^[2] The D.C. Circuit court was the first to rule on whether AI-generated art can have copyright protections.^[3] The court held that AI-created artwork could not be copyrighted.^[4] In considering the plaintiff’s copyright registration application for “A Recent Entrance to Paradise,” the Register concluded that this particular work would not support a claim to copyright because the work “lacked human authorship and thus no copyright existed in the first instance.”^[5] The plaintiff’s primary contention was that the artwork was produced by the computer program he created, and, through its AI capabilities, the product was his.^[6]

The court went on to opine that copyright is designed to adapt with the times.^[7] Underlying that adaptability, however, has been a “consistent understanding that human creativity is the sine qua non at the core of copyrightability,” even as that human creativity is channeled through new tools or into new media.^[8] Therefore, despite the plaintiff’s creation of the computer program, the painting was not produced by a human, and not eligible for copyright. This opinion, while relevant and clear, still leaves unanswered questions regarding the extent to which humans are involved in AI-generated work.^[9] What level of human involvement is necessary for an AI creation to qualify for copyright?^[10] Is there a percentage to meet? Does the AI program require multiple humans to work on it as a prerequisite? Adaptability with the times, while essential, also means that there are new, developing questions about the right ways to address new technology and its capabilities.

Implications of the Case for Fanfiction

Artificial Intelligence is a new concern among scholars. While its accessibility and convenience create endless new possibilities for a multitude of careers, it also directly threatens creative professions and creative outlets. Without the consent of or authority from creators, AI can use algorithms that process artwork and fictional literary works created by fans to create its own “original” work. AI has the ability to be used to replace professional and amateur creative writers. Additionally, as AI technological capacity increases, it can mimic and reproduce art that resembles or belongs to a human artist.^[11]

However, the main concern for artists is wondering what AI will do to creative human industries in general.^[12] Additionally, legal scholars are equally as concerned about what AI means for copyright law.^[13] The main type of AI that fanfiction writers are concerned about is Generative AI.^[14] Essentially, huge datasets are scraped together to train the AI, and through a technical process the AI is able to devise new content that resembles the training data but isn’t identical.^[15] Creators are outraged at what they consider to be theft of their artistic creations.^[16] Artwork, such as illustrations for articles, books, or album covers may soon face competition from AI, undermining a thriving area of commercial art as well.^[17]

Currently, fanfiction is protected under the doctrine of fair use, which allows creators to add new elements, criticism, or commentary to an already existing work, in a way that transforms it.^[18] The next question likely to stem from Thaler will be whether AI creations are subject to the same protections that fan created works are.

The fear of the possible consequences of AI can be slightly assuaged through the reality that AI cannot accurately and genuinely capture human memory, thoughts, and emotional expression. These human skills will continue to make creators necessary for their connections to humanity and the ability to express that connection. How a fan resonates with a novel or T.V. show, and then produces a piece of work based on that feeling, is uniquely theirs. The decision in Thaler reaffirms this notion. AI does not offer the human creative element that is required to both receive copyright and also connect with viewers in a meaningful way.^[19]

Furthermore, the difficulty with new technology like AI is that it’s impossible to immediately understand and can cause feelings of frustration or a sense of threat. Change is uncomfortable. However, with knowledge and experience, AI might be a useful tool for fanfiction creators.

The element of creative projects that make them so meaningful to people is the way that they can provide a true insight and experience that is relatable and distinctly human.^[20] The alternative to banning AI or completing rendering human artists obsolete is to find a middle ground that protects both sides. The interests of technological innovation should not supersede the concerns of artists and creators.

Ultimately, as stated in Thaler, AI artwork that has no human authorship does not get copyright.^[21] However, this still leaves unanswered questions that future cases will likely present before the courts. Are there protections that can be made for online creators’ artwork and fictional writings to prevent their use or presence in AI databases? The Copyright Act exists to be malleable and adaptable with time.^[22] Human involvement and creative control will have to be assessed as AI becomes more prominent in personal and professional settings.

Notes

[1] Thaler v. Perlmutter, 2023 U.S. Dist. LEXIS 145823, *1.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *3.

[7] Id. at *10.

[8] Id.

[9] https://www.natlawreview.com/article/judge-rules-content-generated-solely-ai-ineligible-copyright-ai-washington-report.

[10] Id.

[11] https://www.theguardian.com/artanddesign/2023/jan/23/its-the-opposite-of-art-why-illustrators-are-furious-about-ai#:~:text=AI%20doesn%27t%20do%20the,what%20AI%20art%20is%20doing.%E2%80%9D.