Photo by Markus Winkler on Unsplash.

The recent claims that one of Google’s language processing AIs has become sentient raises a host of questions. Is it really alive, does it have a soul, and will it destroy the world? One other question that lawyers ask is less existential: can an AI file for copyright on a creative work? So far, the answer seems to be “no” – but the reason for that suggests it will one day be “yes.”

“Is This Really Such a Big Deal?”

This might seem like a silly question – but when a non-human can make money off a creative work, it stops being science fiction and starts being a business problem. Take the famous “monkey selfie” case: a monkey grabbed a photographer’s camera and took a selfie, which the photographer published. PETA sued the photographer and publisher as “next friend of” the monkey, claiming that the monkey was the “author” of the photo. (Being the “next friend” of someone means you’re acting on their behalf; this is how parents sue on behalf of their children.) This explains why PETA sued (and why the Ninth Circuit was so irritated when it dismissed PETA’s suit): if a monkey owns a copyright, then it’s entitled to royalties on that copyright. That meant PETA, as its “next friend,” could have collected (and spent) those royalties on the monkey’s behalf. Doesn’t seem so silly now, does it?

What the Law Says

The U.S. Copyright Office – which said from the beginning that only works created by humans are copyrightable – has made its guidance even clearer. Its most recent (January 2021) guidance says outright: “the Office will refuse to register a claim [for copyright] if it determines that a human being did not create the work.” Works created by nature or divine intervention are out – though you can give credit that “the work was inspired by a divine spirit” and still claim copyright. For machine-generated works, the key question is this: was the creative part of the work (text, images, music, etc.) created, selected, or arranged by a human being using a computer, or did the computer do that? If a human makes these key choices, then the human is the “author” and the work is copyrightable. If a computer does so, then the computer is the “author” and the work can’t be copyrighted.

Rise of the Writing Machines

Where AI makes things complex is that the “human input” becomes more remote from the creative work. The popular videos claiming that the author “forced a bot to write this script” are examples of the first step in this process – even though they’re likely fakes. The human writer picks some examples, which the machine then mixes around to find common patterns. Then the human specifies what parts the script has to have and in what order – which the machine delivers. Afterward, the human picks the best (usually the funniest) combinations that the machine offers. This is the same way your phone’s predictive keyboard works – your phone “remembers” what words you usually type and offers those as suggestions. Needless to say, a human performs all the creative steps here – so the human being is the author of the creative work, which is copyrightable.

But even current AIs – those that are purpose-built for it, at least – can go farther than that, as a 2018 sci-fi film called Zone Out proves. The human beings behind it didn’t just have a bot offer suggestions – their AI wrote the whole script, spliced together public-domain film footage with new faces, and added its own soundtrack. That AI fell just short of running the entire process itself – because the humans were on a 48-hour time limit, they had to manually pick clips for the AI to use. But the rest of the film – “badly dubbed” as it was – was entirely the AI’s brainchild. Would Zone Out have been eligible for copyright if the authors had a week instead of 48 hours – or would the human selection of what went into the movie be enough by itself for the humans to claim what came out of it?

Would You Like to Know More?

For businesses on the cutting edge of technology, answering these questions ahead of time can be the difference between millions in revenues and millions in legal fees. If you think your business might face these issues, contact us by email or give us a call at (713) 568-9008.