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Computers can now write poems, paint portraits and produce music better than many humans. But when it comes to the realm of intellectual property law, artwork made by machines can’t receive copyright protection, a federal agency has decided.
The U.S. Copyright Office refused to grant a copyright this month for an image made by an artificial intelligence program called Creativity Machine—ruling that “human authorship is a prerequisite to copyright protection.” The case will now head to federal court as the AI program’s owner, Stephen Thaler, plans to file an appeal, according to Ryan Abbott, a Los Angeles-based attorney representing Thaler.
Thaler, the founder of the Missouri-based AI firm Imagination Engines, tried to copyright “A Recent Entrance to Paradise,” a picture that was autonomously created by Creativity Machine’s algorithm without any human help. Thaler listed the program as the artwork’s author and sought a copyright as the machine’s owner.
The case arrives as artists are increasingly using AI to help generate artwork, including works produced by autonomous machines. Abbott, a partner at L.A.-based law firm Brown, Neri, Smith & Khan, noted that AI-produced artwork is creating significant commercial value, such as an AI-authored painting that sold for $432,000 at auction in 2018.
“The United States Copyright Office has a policy of not allowing that sort of work to be protected,” Abbott told dot.LA. “That sort of policy is going to stand in the way of people developing machines that are going to make socially-valuable creative works: songs, movies, music. This is really an area where the United States should be a global leader in promoting AI development.”
Ryan Abbott, the attorney representing Stephen Thaler.
Provided by Ryan Abbott
Working on behalf of Thaler, Abbott has led a series of legal test cases for AI-generated intellectual property, including patents for inventions created by AI programs. As far as the Creativity Machine artwork, the Copyright Office had twice previously rejected Thaler’s claims in 2019 and 2020, finding that the work “lacked the required human authorship” necessary to win a copyright. In the most recent request for reconsideration, Abbott argued that the human authorship requirement was unconstitutional and unsupported by case law.
But in ruling against Thaler again, the Copyright Review Board’s three-person panel cited several cases in which courts refused to extend copyright protection to non-human creations. In 1997, a federal appeals court ruled that a book allegedly “authored by non-human spiritual beings” could only gain copyright if a human curated the revelations. Similarly, in a separate 2018 case, a monkey was not awarded a copyright for photos that it took with a camera.
“Thaler must either provide evidence that the work is the product of human authorship or convince the Office to depart from a century of copyright [legal theory],” the Copyright Board wrote in its Feb. 14 ruling. “He has done neither.”
Abbott contends that Thaler’s case is different from the monkey ruling cited by the Copyright Board, given that “no one is trying to have a machine own a copyright.” Rather, Thaler wants to own the copyright for artwork created solely by a machine that he built, Abbott said.
“It's going to be a real issue when someone has AI that makes a song that is genuinely commercially valuable—that's playing on the radio, that people want to listen to,” Abbott noted. “Then there's a question: Do I just put my name on this so I can get streaming royalties? Or do I admit the machine made it, in which case I can't stop anyone from using it however they want?”
Abbott said he plans to appeal the board’s decision in federal court in Washington D.C.
Despite its seemingly inhospitable stance toward AI-created artwork, the Copyright Office’s ruling shouldn’t be a major issue for artists using AI as a collaboration tool, according to Ahmed Elgammal, founder of AI software firm Playform. The startup (which is led by L.A.-based CEO Jennifer Chang) creates AI-enabled tools for artists; one of Playform’s products lets artists upload dozens of their own images and uses AI to generate them into something new. (Art created through Playform’s technology was featured in an episode of the HBO series “Silicon Valley.”)
Elgammal said he wasn’t surprised by the Copyright Office’s decision in the Creativity Machine case, as U.S. copyright laws are designed to account for the human creative process. (Other countries like China, he noted, have granted copyrights to autonomous AI.) Still, Elgammal doesn’t see the debate becoming a major issue for artists using AI to assist in their work.
“Artists are using AI as a tool [in] the same way [that] artists are using the camera,” he said. “You cannot claim the camera is the artist. Artists are using cameras to create photographs, and that’s how photographs get copyrighted.”
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While discussing the venture capital world, and his upcoming technology conference in Santa Monica, The Montgomery Summit 2022, March Capital co-founder and Managing Partner Jamie Montgomery doesn’t necessarily contradict this formula for success, but adds a new attribute to the mix that’s sometimes left out: curiosity.
Montgomery’s a believer that there’s no one right way to go about things, and no surefire process for success. Sometimes, the best company emerges from not just the best data and team but the most creative approach. “If something isn’t clear, invert,” Montgomery explained. “Then invert again. Soon the subject becomes clear.”
The best investors and leaders have an innate inquisitiveness about the world around them, and seek out opportunities not just based on market trends but genuine observations about problems in desperate need of solutions.
“You sort of have to be a very heuristical thinker,” Montgomery said. “Sometimes I find some people I talk to are very smart and interesting, and I think, “That person’s very thoughtful. They’re going to be a good investor.’ Sometimes you meet people and you think ‘Well, they come across smart, but they’re always preparing what they’re going to say in response to what you have to say, they’re not really listening.’ Being a good investor, you’ve got to be a good listener. You’ve got to figure out, what’s the signal and what’s the noise? Filter out the noise and say ‘What’s real?’”
Thoughtfulness, attentiveness and curiosity are typically the sort of attributes that we think of as innate, as opposed to skills you can improve via on-the-job training. Montgomery noted, “I always ask entrepreneurs why rather than what. You get a more interesting answer.” Reading and research and investigation can help, but innate curiosity remains an essential ingredient in business success.
“I think, to be an investor, not just a VC but an overall investor, one benefits from an incredible amount of reading and knowledge,” Montgomery explained. “You have to have a voracious appetite, so it’s really a high-level curiosity. Some people have it, some don’t.”
One subject that’s on Montgomery’s mind these days is quantum computing, and its potential impact on cybersecurity, a major area of focus for March. His process starts by asking core questions about the next 5-10 years and what they’ll look like, before even considering potential solutions.
“If you’re investing, you have to look at something that’s inevitable,” Montgomery explained. “Is it gonna happen or not. If it’s inevitable, then the question is, is it imminent? And is it investible? Start with inevitable. Eventually you’re going to have quantum computing, and that’s gonna create an existential threat to cybersecurity. Is that imminent?... What is the post-quantum cyber world like, with all this information that’s been siphoned out of America by China… what do they have and how do we prepare for a post-quantum cybersecurity? It’s almost existential.”
This holistic question-based approach also drives Montgomery as he plans and organizes the annual Montgomery Summit, the largest such event of the L.A. tech calendar year (Montgomery refers to it as the “Rose Bowl of Conferences.”)
He expects around 1,200 people to attend this year – the event’s big return post-pandemic – for panels and sessions that don’t just cover areas in which March Capital specializes, but a vast and diverse variety of subjects and topics, designed to intrigue and inspire curious minds.
Over 175 speakers in total have signed on for the 19th annual Montgomery Summit, to be held on May 24 and 25, from the worlds of technology, economics, geopolitics, public policy, the sciences and beyond. Montgomery gets animated as he tells me about the voluminous range of topics being covered, from the Federal Reserve’s response to inflation to the war in Ukraine to the stories behind companies like Bill.com and CrowdStrike. One session will feature Chapman University Presidential Fellow Jack Horner, one of the world’s leading paleontologists and a key inspiration for the “Jurassic Park” character Dr. Alan Grant.
“It’s the interaction, the entrepreneurs with the investors and the executives,” Montgomery told me. “It’s fantastic, it’s enjoyable, it’s fun, and it’s candid. There are no big egos. The speakers will actually come and talk to you, they don’t come in the back door and leave through the back door. You actually can go to any one of seven sessions, and it’s going to be interesting, and they’re all short. 25-45 minutes each.”
The shorter 25-45 minute sessions help to stave off boredom and mean that attendees can sample a wider range of subjects and sessions than they might at other conferences. It helps keep things moving and makes them fun, a theme Montgomery returned to a few times in our discussion.
“There’s a lot of conferences that are very professionally run or research-driven or they’re very commercial. People come here and they’re gonna have a blast, right?”
The Montgomery Summit runs May 24th-25th at Santa Monica's Fairmont Miramar Hotel & Bungalows. Find out more information on their website.
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