Who owns the rights to art created by artificial intelligence: humans or algorithms?

Last year, Kris Kashtanova wrote graphic novel instructions for a new AI program and started a high-stakes debate about who created the work: a human or an algorithm.

“Zendaya leaves the gates of Central Park,” Kashtanova contributed to Midjourney, a ChatGPT-like AI program that produces dazzling images of written prompts. “The empty New York of the future of the sci-fi scene…”

From those results and hundreds of others, “Zarya of the Dawn,” an 18-page story about a character resembling actress Zendaya, wanders a desolate Manhattan hundreds of years in the future. Kashtanova received the copyright in September, declaring on social media that it meant artists were entitled to legal protection for their AI projects.

It didn’t last long. In February, the US Copyright Office suddenly reversed itself, and Kashtanova became the first person in the country to be stripped of legal protection for artificial intelligence art. According to the agency, the images of “Zarya” were not man-made. The office gave Kashtanova the right to keep the copyright of the adaptation and the story.

Now the artist is once again testing the limits of the law with the help of a powerful legal team. For the new book, Kashtanova has used a different artificial intelligence program, Stable Diffusion, which allows users to scan their own drawings and refine them with text prompts. The artist believes that starting with the original works gives enough of a “human” element to the authorities.

“It would be really weird if it’s not copyrighted,” said the 37-year-old artist of the latest work, an autobiography.

A spokesperson for the Copyright Office declined to comment. Midjourney also declined to comment, and Stability AI did not respond to requests for comment.

GOOD records

At a time when new AI programs like ChatGPT, Midjourney, and Stable Diffusion seem poised to revolutionize human expression as they break records for user growth, the legal system still hasn’t figured out who owns the output — the users, the program owners. or maybe no one.

Billions of dollars could depend on the answer, legal experts said.

If the users and owners of new artificial intelligence systems were granted copyright, they would benefit enormously, said Ryan Merkley, former head of Creative Commons, a US-based organization that grants licenses so creators can share their work.

For example, companies could use AI to produce and own vast amounts of low-cost graphics, music, video and text for advertising, branding and entertainment. “Copyright bodies are going to be under tremendous pressure to allow computer-generated works to be copyrighted,” Merkley said.

In the United States and many other countries, anyone who engages in creative expression generally has immediate legal rights to it. Copyright registration creates a public record of the work and allows the owner to go to court to enforce their rights.

Courts, including the US Supreme Court, have long held that the author must be human. In denying legal protection for the “Zarya” images, the US Copyright Office cited decisions that denied legal protection to a selfie taken by a curious monkey named Naruto and a song that the copyright applicant said was composed by the “Holy Spirit”.

One American computer scientist, Stephen Thaler of Missouri, has argued that his AI programs are sentient and should be legally recognized as the creators of the works of art and inventions they produce. He has sued the US Copyright Office, appealed to the US Supreme Court and has a patent case in the UK High Court.

At the same time, many artists and companies that own creative content strongly oppose granting copyright to AI owners or users. They argue that because the new algorithms train themselves on vast amounts of material on the open web, some of which is copyrighted, AI systems are ingesting legally protected material without permission.

Image provider Getty Images, a group of visual artists and owners of computer code, have separately filed lawsuits against the owners of the AI programs, including Midjourney, Stability AI and ChatGPT developer OpenAI, alleging copyright infringement, which the companies deny. Getty and OpenAI declined to comment.

Sarah Andersen, one of the artists, said copyrighting AI works would “legalize theft”.

“HARD QUESTIONS”

Kashtanova is represented pro bono by Morrison Foerster and its veteran copyright attorney Joe Gratz, who is also defending OpenAI in a proposed class action lawsuit filed on behalf of owners of copyrighted computer code. The company took over Kashtanova’s case after Heather Whitney, an associate at the company, spotted a LinkedIn message from the artist seeking legal help with a new filing after the “Zarya” copyright was rejected.

“These are difficult questions that have significant implications for all of us,” Gratz said.

The copyright office said it reviewed Kashtanova’s “Zarya” decision after discovering that the artist had posted on Instagram that the images were created by artificial intelligence, which it said was not clear in the original September filing. On March 16, it issued public guidelines urging applicants to clearly state whether their work was created with the help of artificial intelligence.

The guidelines stated that the most popular AI systems are unlikely to create copyrightable work, and “what matters is the extent to which the human had creative control”.

‘ABSOLUTELY CRAZY’

Kashtanova, who identifies as non-binary and uses “they/them” pronouns, found Midjourney in August after the pandemic largely stopped their work as a photographer at yoga retreats and extreme sports events.

“My brain was completely dumbfounded,” the artist said. Now, as AI technology advances at lightning speed, Kashtanova has moved on to new tools that allow users to enter original work and give more precise commands to control the output.

To test how much human control will satisfy the copyright office, Kashtanova plans to submit a series of copyright applications for individual images selected from a new autobiographical cartoon, each made with a different AI program, setting or method.

The artist, who now works at a start-up that uses artificial intelligence from children’s drawings to comic books, created the first such image a few weeks ago, called “Rose Enigma.”

Sitting at a computer in their one-bedroom Manhattan apartment, Kashtanova showed off their latest technique: They brought up a simple pen-and-paper sketch they’d scanned into Stable Diffusion and began refining it by tweaking settings and using text prompts. such as “young cyborg woman” and “flowers coming from her head”.

The result was a foreign image, the lower part of the woman’s face with long-stemmed roses replacing the upper part of the head. Kashtanova filed it for copyright on March 21.

The picture also appears in Kashtanova’s new book. Its title: “A.I. Community.”

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