James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “A PORTRAIT OF AN ARTIST AS A YOUNG … CODE(R)?: Why Understanding Artificial Intelligence & Real Creativity Shouldn’t Make the Artist a Dunsel.”
Following is an excerpt:
In my recent attempt at spring cleaning, I mentioned that “the Copyright Office’s ‘refusal to register a two-dimensional artwork claim in the work titled ‘A Recent Entrance to Paradise’ (‘Work’).” I also observed that “[e]ven with Roombas and Creativity Machines doing their jobs well, these issues remain a little messy and will need to be considered further.” I just thought I would have a little longer respite.
But that is not the case because the party denied registration, Dr. Stephen Thaler, filed suit on June 2, 2022, challenging that denial. So, we are right back to confronting the muddled questions around what makes something copyrightable, arising now in the context of a contested case concerning a:
To address this question, let us first look at what Thaler is contending.
At its base, Thaler argues that he owns the copyright in the Work, but a computer was the author of the Work. Thaler’s complaint admits that he developed the advanced artificial intelligence system that generated the work in question. Complaint, par. 1 [As an aside, the Work at issue is entitled “A Recent Entrance to Paradise,” which sounds a bit like an AI-generated title to replace Stairway to Heaven, which has also appeared in these posts before. Of course, it isn’t clear if Thaler’s AI program generated just the Work, or the title as well]. But, despite initiating the creative process, Thaler pleads that the AI system itself “generat[es] creative output … under conditions in which no natural person contributed to the work,” and that the work in question here was “[c]reated autonomously by machine,” “lacked traditional human authorship,” and that “AI can autonomously create works…” Complaint, par. 1, 14, 17, 20, 36. Thus, as expressed in one reading of this post’s title, Thaler argues that the artist that created the Work in question is the recently developed (read “young”) code from which the work sprang.