US court is unwilling to provide copyrights to the computer-generated arts

The purpose of copyright, per the Constitution, is to promote the progress of art. But, when a collaboration extends to include nonhuman authors, the law recoils. While Congress is the body that must ultimately make the decision about copyright's outer limits, the courts addressed the question of computer-generated arts a few years ago in the "monkey selfie" case, ruling that animals cannot hold the copyright. The US Copyright Office now includes "a photograph taken by a monkey" on its list of things it refuses to register.

There's a wide spectrum of autonomy. If the machine is merely a tool (like a camera) used by a human author, the human author won't have a problem obtaining copyright. But scientist Stephen Thaler was recently turned down when he tried to register A Recent Entrance to Paradise, a work of visual art he says was created entirely by an AI paradigm he calls the Creativity Machine. Paradise depicts a set of train tracks disappearing into a tunnel festooned with green and purple forms that give the impression of abstracted, cascading wisteria. Parts of the picture seem as though they've been double-exposed, with a second image swelling up within the first, giving the whole scene the effect of a kind of euphoric hallucination.

Copyright law distinguishes between authorship and ownership, and it's not uncommon for an entity other than the true author of a work to own its copyright. Thaler tried to register Paradise as a "work made for hire" authored by the Creativity Machine but owned by him. The Copyright Office found that the work "lacks the human authorship necessary to support a copyright claim." Legal scholars tend to be in favor of a strictly observed binary between humans and machines, and they tend not to see any good reason to grant copyright protection to machine-generated works. (Machines, after all, don't need incentives to create things.)

Thaler says this reflects a Luddite perspective on what it means to be human. "It boils down to this: I'm a machine," Thaler says, referring to himself. "I've invented a lot of stuff. I've copyrighted a lot of stuff. I've originated a lot of ideas in my time. And I get credit for the most part." In Thaler's view, the minor physical differences between the Creativity Machine and himself should not be enough to preclude the AI entity from being legally recognized as the author of its own work.

It's unlikely that Thaler will get the acceptance of the Creativity Machine's "humanity" that he wants from the Copyright Office. Nor should he—radically redefining our conception of what it means to be human is not a task that should fall to the Register of Copyrights, an unelected and relatively obscure government official appointed by the Librarian of Congress. But Thaler and other generative artists deserve the recognition and control that would come with at least being able to register as the authors of these works themselves. As more and more artists turn to generative code and other algorithmic tools to make their work, we should consider extending protection to the products of these methods.

To be sure, many artists in the generative art movement couldn't care less about whether their work is eligible for copyright protection. Yet. "A lot of the people participating in the crypto space who come from a programming or coding or engineering background have that open source ethos," says Erick Calderon, founder of the NFT platform Art Blocks. But Calderon says he sees artists start to think about protecting their images "that first time when somebody takes advantage of your work and you feel a little bit violated, where you're just sitting there going, 'oh, man, it would have been nice for them to have asked me.'"

Unauthorized appropriation of an artist's work for commercial purposes where there's significant money at stake strikes many as unfair. And Calderon, an artist himself, sees unauthorized appropriation as both an economic and political issue. "I'd be concerned if you started a shawarma restaurant and used a Chromie Squiggle as a logo," he says, referring to his signature generative project. "That's not necessarily the artistic intent I had behind the Squiggles." It's also important to Calderon to be able to prevent his work from being used for hate speech. Without copyright, artists would have limited recourse when they saw their work being used to adorn the flag of an organization, they found ideologically repugnant, or when they heard their music being used as the campaign rally soundtrack for a candidate they despised. Generative artists should be able to avail themselves of these protections too. Their work may be computer-generated, but it is not all generic—the best of it exhibits a distinct style that can be readily associated with the artist by those in the know.

Some may argue that extending copyright protection to generative art will hamper creative production overall by making it too "easy" to create a copyrightable work. A copyright troll with the right coding skills could generate a thousand images in a matter of seconds and then use them as lawsuit bait. But new technologies have always presented opportunities for trolls, and our wariness of bad actors exploiting the system should not prevent us from striving to design a copyright regime that truly lives up to its constitutional mandate.