The Dawn of AI Creativity: Philosophical and Legal Examination of Art, Copyright, and Authorship of AI-generated Art
November 13, 2023

As artificial intelligence continues to advance, we are increasingly observing its application in fields that were previously considered exclusive to human ingenuity, such as art and creativity. AI-generated art has started to reshape the landscape of intellectual property rights, raising thought-provoking questions about authorship attribution, creative ownership, and the very essence of creativity. We also ask ourselves the big question of whether you can sell AI-generated art or not. Along, with that, we examine it from philosophical as well as legal rationale. 

Artificial Creativity – The New Frontier

AI-based systems, like the ones based on Generative Adversarial Networks (GANs), have gained a reputation for creating astonishing works of art. These systems utilize deep learning algorithms, allowing AI to analyze vast collections of artwork and subsequently produce unique creations. 

A significant milestone was achieved in 2018 when the portrait "Edmond de Belamy," entirely designed by an AI, was auctioned for an astounding $432,500 at Christie's. The significance of this event was not merely the sale, but it signalled a shift in the perception of AI as a tool capable of engaging in creative processes.

A woman looks at a work of art created by an algorithm by French collective named OBVIOUS which produces art using artificial intelligence, titled "Portrait of Edmond de Belamy," at Christies in New York. (Timothy A. Clary/AFP/Getty Images)

Reframing the Philosophical Debate

At the heart of the AI creativity debate is the philosophical question of what constitutes creativity. Traditionally, creativity is seen as a uniquely human trait, a subjective experience coupled with the ability to produce novel and valuable outcomes. But if AI, devoid of consciousness and subjective experiences, can generate valuable and novel art, does this compel us to reevaluate our understanding of creativity? 

It might be premature to assign AI the label of 'creative.' AI, in its current form, lacks self-awareness and the ability to conceptualize the purpose or value of its creations. However, the fact that it can generate output perceived as creative by humans is an intriguing paradox that challenges our traditional assumptions.

Image Source: Blog

AI, Authorship, and Intellectual Property Rights

The advent of AI-generated art brings us to uncharted waters in the domain of copyright laws. Presently, copyright laws are structured around human authorship. The U.S. Copyright Office, for example, states that copyright law only protects "the fruits of intellectual labor" that are "founded in the creative powers of the mind."

Since AI lacks the creative powers of the mind, as it is traditionally understood, who then owns the copyright of the AI-generated art? Is it the AI developer, the AI operator, or do these creative outputs fall into the public domain due to the lack of a human author? 

Should we alter our current copyright laws to include AI as a potential 'author'? Or, should we designate the copyright to the programmer or operator of the AI system, under the premise that they initiated and guided the creative process? Each possibility carries its philosophical and legal implications, with no clear consensus in sight. So, can you sell AI generated art?

Let’s dive deeper to understand it from legal perspective with pragmatic view on the AI-generated art and considerations with respect to laws.

AI and Copyright Eligibility

Current U.S. copyright laws exclude non-human works from copyright protection. This was exemplified in the "Monkey Selfie" case of 2014, where it was determined that a monkey couldn't own the copyright to the photographs it took. If we apply this precedent to AI, it stands to reason that AI-generated art may fall into the public domain due to a lack of human authorship.

One of the ‘monkey selfies’ at issue in the dispute. Image Sourced from Wikipedia

However, given the increasing commercial value of AI art, the absence of copyright protection may discourage artists and companies from developing and deploying AI technology in creative industries.

The Role of AI Operators and Developers

A possible way around this quandary is to consider the role of the human operator or developer in the process of AI art generation. They could be viewed as the 'author,' as they set up the algorithm, choose the training data, and may manipulate the output. Arguably, the artistic choices made by these humans could meet the “modicum of creativity” requirement established by the U.S. Supreme Court in the landmark case of Feist Publications, Inc., v. Rural Telephone Service Co.

However, this argument may not always hold. For instance, when an AI operates autonomously, it's challenging to argue that the final work is a result of a human's direct, creative input.

Looking at Global Perspectives

Internationally, the issue remains just as complex. In the UK, the Copyright, Designs and Patents Act of 1988 states that if a work is made by a computer, the author is the person who made the necessary arrangements for the creation of the work. This might imply that the AI operator could be considered the author.

On the other hand, countries like India and New Zealand explicitly grant copyright to computer-generated works, acknowledging the machine's operator as the author. This legislative foresight could set a potential pathway for future AI copyright laws.

The Need for New Legal Frameworks

Given the philosophical and legal complexity surrounding AI-generated art, it becomes apparent that our existing copyright laws might be insufficient for the age of AI creativity. So, we closely observing judgements here is our best bet.

It might be necessary to develop new legal frameworks that recognize the unique nature of AI-generated works. For instance, creating a sui generis (of its own kind) system of protection for AI-generated works could be an option. This system could offer a limited bundle of rights, as compared to traditional copyright law, addressing issues like reproduction and distribution while recognizing the absence of a human author.

Re-envisioning Ownership: Collective Ownership and Open Access Models

Moreover, concepts like collective ownership or open access models could be embraced. Collective ownership could distribute rights among various stakeholders, including AI developers, operators, and even users. On the other hand, open access models could make AI-generated art freely available, fostering innovation and cultural development.

The concept of ownership, in the context of AI art, has been further complicated by the emergence of blockchain technology and Non-Fungible Tokens (NFTs). NFTs provide a way to attribute and transfer ownership of digital assets, including AI art, establishing a clear provenance trail. Fractionalization, enables the division of NFTs into smaller, more affordable shares, opening up possibilities for art enthusiasts of all financial backgrounds to own a stake in the AI-generated masterpieces. However, the notion of owning an AI-generated work remains philosophically murky, as the 'creator' is a machine, and the 'work' is an inherently reproducible digital file.

Image to showcase fractionalization of NFTs and AI-generated art. Purely illustrative. Source: Blog on NFTs and AI-generated art 

If a human artist uses AI as a tool to generate art, it's clear that they retain ownership of the final product. But when AI autonomously generates art, the concept of ownership becomes convoluted. Can we claim ownership of something we did not create, or should we consider new models of shared or non-ownership for AI-generated creations?

The Path Forward

The intersection of AI and creativity underscores a need for ongoing philosophical examination and a re-evaluation of our current legal frameworks. AI's role in the creative process is growing, and it will undoubtedly continue to blur the lines between human and machine creativity, challenging our traditional concepts of authorship, ownership, and copyright.

As we navigate this evolving landscape, dialogue between AI developers, artists, philosophers, and legal scholars will be vital. It will be through these multi-disciplinary conversations that we can hope to arrive at a more comprehensive understanding and potentially innovative solutions to these complex issues. As technology continues to evolve, so too must our legal systems. The future will require us to develop robust, forward-thinking legislation that embraces the reality of artificial creativity while protecting and incentivizing human involvement

AI-generated art represents an exciting new frontier in both technology and creativity. However, as we marvel at the innovative potential of these technologies, we must also engage in the philosophical and legal deliberations they instigate. The future of creativity may well be a collaborative endeavor between humans and machines, and how we navigate that partnership will define our creative legacy.

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