copyright

Brushstroke Battles: Unraveling Copyright Challenges With AI Artistry

October 15, 2023
Artificial Intelligence, Copyrights, Intellectual Property, New Technology

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.

[12] https://www.theguardian.com/technology/2022/nov/12/when-ai-can-make-art-what-does-it-mean-for-creativity-dall-e-midjourney.

[13] https://www.reuters.com/legal/ai-generated-art-cannot-receive-copyrights-us-court-says-2023-08-21.

[14] https://www.theguardian.com/technology/2022/nov/12/when-ai-can-make-art-what-does-it-mean-for-creativity-dall-e-midjourney.

[15] Id.

[16] Id.

[17] Id.

[18] https://novelpad.co/blog/is-fanfiction-legal# (citing Campbell v. Acuff Rose Music, 510 U.S. 569 (1994).

[19] https://www.reuters.com/default/humans-vs-machines-fight-copyright-ai-art-2023-04-01/.

[20] https://news.harvard.edu/gazette/story/2023/08/is-art-generated-by-artificial-intelligence-real-art/.

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

[22] Id. at *10.

Everything That Can Be Digital Will Be

February 22, 2014
Intellectual Property

Dylan J. Quinn, MJLST Staff

This past spring, the Supreme Court delivered a landmark decision in regard to the first sale doctrine by reversing the Second Circuit in John Wiley & Sons, Inc. v Kirtsaeng. The First Sale Doctrine allows a buyer or recipient of a copyrighted work to dispose of, lend, or distribute that copy as they see fit. In Wiley, the Court ruled in favor of the Defendant – who bought books in another country at a lower cost, imported them to the U.S., and then re-sold them at a higher market rate – thereby solidifying that the doctrine applies to copies of a copyrighted work lawfully obtained abroad.

A year prior to the ruling, in Volume 13, Issue 2, of the Minnesota Journal of Law Science & Technology, Benjamin Hamborg critiqued the Second Circuit for ruling against the Defendant, arguing that the Supreme Court needed to overturn the decision because the Circuit Court failed to give proper weight to the legislative history of the first sale doctrine and the negative public policy implications that would arise from affirming the ruling. The Supreme Court was in agreement with Hamborg, and seemingly eliminated those public policy concerns and the uncertainty surrounding the doctrine.

Hamborg discussed the potential dangers posed to libraries if they were not allowed to distribute works that were manufactured abroad, and while Wiley seemed to put an end to those issues, the movement of libraries into a more digital age has raised recent concerns about libraries’ ability to lend or distribute e-books and other digital works. Currently, redistribution of a digital work is not given the same “first sale” protection from copyright infringement claims because digital works do not decay over time and copies are just as valuable as the original – thereby having unknown consequences on the market for the copyrighted works. As libraries convert more and more of their collections into digital formats, we could be moving into an era where a dispute over a licensing agreement removes a large portion of a library’s collection instantly.

The recent concerns over libraries by no means represent the first discussion about a potential “digital” first sale doctrine, however it is just another example of the pressure pushing down on Congress to address the proper application of the first sale doctrine in a digital age. Back in 2001, the Copyright office addressed proposals for a digital first sale doctrine, and responded that “there was no convincing evidence of present-day problems” and that no expansion of first sale would be recommended. In the years since, there have been few developments that suggest Congress is ready to address the issue, until recently.

In the last two years, the Department of Commerce solicited comments on a possible digital first sale doctrine, the Director of the Copyright Office discussed possible options Congress could weigh if addressing the issue, and a court ruled against expanding the first sale doctrine into the digital sphere – stating that it is an issue for Congress. The recent resurgence of concerns over libraries is just another indication of the pressure facing Congress to address the application of the first sale doctrine on the internet.

While the issue clearly impacts libraries, the issue has massive implications on the entire online market place. It is a tall order to address such a large issue, but eventually something has got to give. At some point there needs to be alternative legislation or expansion of the first sale doctrine on the internet. The slogan surrounding the early days of internet sums it up best: everything that can be digital will be.

Supreme Court to the Rescue: The First Sale Doctrine Survives

April 9, 2013
Intellectual Property

by Benjamin Hamborg, UMN Law Student, MJLST Articles Editor

Thumbnail-Benjamin-Hamborg.jpgAs predicted inJohn Wiley & Sons, Inc. v. Kirtsaeng: The Uncertain Future of the First-Sale Doctrine, the Supreme Court last month held, by a 6-3 margin, that the first sale doctrine does apply to works lawfully made outside of the United States. The first sale doctrine, which allows the lawful owner of a copyrighted work to dispose of that copy as he or she sees fit, was in danger of disappearing as applied to works manufactured overseas after the Second Circuit decided in August of 2011 that the doctrine only applied to works made in America.

Hailed by many as a victory for American consumers, See Gary Shapiro, Supreme Court Gives American Consumers Victory Over Copyright Owners in Kirtsaeng vs. John Wiley & Sons, FORBES (March 20, 2013, 9:16 AM), the decision also represents an important victory for American manufacturing. A decision to the contrary by the Supreme Court would have given companies in the United States, particularly publishing companies, an incentive to move manufacturing plants oversees in order to gain unlimited control over the resale of their products. In fact, any company would have been able to gain such control simply by affixing a copyrightable image or other work to an uncopyrightable product, such as a watch. Of course, as pointed out in Kirtsaeng v. John Wiley & Sons: No Good Deed Goes Unpunished, it remains to be seen whether this decision has a negative impact on the rest of the world, as publishers now have a disincentive to sell textbooks at a discounted rate in impoverished countries. See Roy Zwahlen, Kirtsaeng v. John Wiley & Sons: No Good Deed Goes Unpunished, PATENTLY BIOTECH (March 26, 2013).

The Supreme Court to Decide the Fate of the First-Sale Doctrine in Kirtsaeng

October 11, 2012
Intellectual Property, Litigation

by Benjamin Hamborg, UMN Law Student, MJLST Articles Editor

Thumbnail-Benjamin-Hamborg.jpgLater this month, the U.S. Supreme Court is scheduled to hear oral arguments in Kirtsaeng v. John Wiley & Sons, Inc., a case which should decide once and for all whether the first-sale doctrine applies to works manufactured outside of the United States. As I described last spring in volume 13 of the Minnesota Journal of Law, Science & Technology, the case arises from Supap Kirtsaeng’s attempt to take advantage of the disparity in pricing between textbooks manufactured for sale in the United States and those manufactured and sold internationally. Kirtsaeng’s plan involved purchasing textbooks published by John Wiley & Sons, Inc.’s wholly-owned subsidiary John Wiley & Sons (Asia) Pte Ltd., then reselling the textbooks online to consumers within the United States.

While textbooks published by John Wiley & Sons, (Asia) Pte Ltd. for the international market are nearly identical in terms of content to their U.S. counterparts, the international versions sell for significantly less due to differences in quality and design. When John Wiley & Sons, Inc.–as the registered copyright holder of the United States editions of the works sold by Kirtsaeng–sued for copyright infringement, Kirtsaeng based his defense on the first-sale doctrine, which allows “the owner of a particular copy [of a copyrighted work] . . . lawfully made under this title . . . to sell or otherwise dispose of the possession of that copy” without the permission of the copyright holder.

The question the Supreme Court will face on October 29th is whether the first-sale doctrine applies to works manufactured outside of the United States, a question which the Second–in John Wiley & Sons, Inc. v. Kirtsaeng–and Ninth Circuits have already answered in the negative. The prospect of nationwide denial of the first-sale doctrine to works manufactured outside of the United States has broad implications with regard to the sale of gray-market goods within the United States. Many large United States retailers, particularly online retailers, use gray-market goods to deliver products to customers at a substantial savings. In fact, there exists “an estimated $63 billion annual market ‘for goods that are purchased abroad, then imported and resold without the permission of the manufacturer.'”

Narrowing of the first-sale doctrine may even affect the ability of libraries in the United States to lend foreign manufactured books. As Andrew Albanese recently pointed out, “if a library bought a book in the U.S. from a U.S. publisher, and that book happened to be printed in China . . . . the uncertainty the Second Circuit interpretation [of the first-sale doctrine] would create for libraries could deter many libraries from lending [the] materials in question.” Finally, if the Second Circuit’s holding is affirmed by the Supreme Court, companies that manufacture copyright-protected goods within the United States will have an incentive to move their manufacturing plants abroad so as to gain greater control over the sale of their products.

Mashing up Copyright Infringment with the Beastie Boys and Ghostface Killah

October 3, 2012
Intellectual Property, Internet

by Eric Maloney, UMN Law Student, MJLST Staff

Thumbnail-Eric-Maloney.jpgApparently, Bridgeport Music has never seen the episode of Chappelle’s Show declaring that “Wu-Tang Clan ain’t nothing to [mess] with.” The record label has decided to sue the group, specifically artists Raekwon, Ghostface Killah, Method Man, and producer RZA, for reportedly using a sample of a 1970’s recording originally by the Magictones on a 2009 Raekwon album track. The portion of the recording allegedly utilized in production of the song was sped up to change the sample’s key from E minor to F# minor, and constituted four measures of the original tune. The sample was only ten seconds long.

Wu-Tang Clan isn’t the only group currently under scrutiny for their use of sampling. The Beastie Boys are also facing an infringement suit, due to allegedly sampling two songs by a group called Trouble Funk in four of their tracks from the late 1980’s. This suit is different in at least one respect from the Bridgeport matter: the record company, Tuf America, will have to show not only infringement, but also explain why the suit shouldn’t be barred by the statute of limitations after over 20 years have passed since the Beasties released these songs.

These lawsuits are hardly novel; hip-hop and electronica artists have been subject to infringement liability for years now due to the rise in their use of digital sampling methods. The Beastie Boys especially have been repeatedly sued for using unauthorized samples. (See, e.g. Newton v. Diamond, 204 F. Supp. 2d 1244 (C.D. Cal. 2002). For a great summary of the history of sampling in music production and court cases regarding infringement, see Professor Tracy Reilly’s article Good Fences Make Good Neighboring Rights in the Winter 2012 issue of the Minnesota Journal of Law, Science & Technology.

As Professor Reilly indicates in her article, the latest federal appeals court to directly address this issue has taken a hard-line stance: appropriation of any part of a sound recording is a physical taking, no matter how minute the sample may be. That case, Bridgeport Music v. Dimnesion Films, featured the same plaintiff record company that is now suing Wu-Tang Clan. The Sixth Circuit Court of Appeals in this instance held that there is no type of de minimis protection for use of small samples; instead, any unauthorized, direct sample of a protected recording subsequently used by an artist constitutes infringement.

The risk that courts run in following such a bright-line doctrine is that they may be a bit behind trends in culture and technology in dealing so harshly with those who choose to sample copyrighted works. So-called “mash-up” artists, such as Greg Gillis of Girl Talk, make a living through exclusively sampling copyrighted works and then distributing them for free under the penumbra of “fair use.” His sampling is both notorious and fairly obvious; there are websites dedicated to tracking which samples he chooses to use in his productions. Gillis is still able to make a living by touring and selling merchandise, while also speaking out against current copyright infringement standards.

As digital sampling techniques continue to improve and the demand for “mash-up” artists grows, the Bridgeport ruling will start to look dated in the face of the reality of modern-day music production. This is especially true in the case against the Wu-Tang Clan, where it appears somewhat absurd to condition liability on such a small amount of sampled music. For now, though, artists will need to stay on their toes and be sure to license any samples, no matter how minimal, or face the consequences. This doctrine may stifle creativity for the time being, but perhaps all this legal wrangling will give artists emotional fodder for future compositions. Either way, it’s becoming clearer as more of these suits are brought that greater clarity on the issue is needed, either from Congress or the courts. A better balance between encouraging creativity and protecting copyrights than what is given to us by Bridgeport can hopefully be found as this area of law continues to evolve.

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