(from the continuing-to-lose-the-plot department)
There’s a growing debate among copyright lawyers about whether the producer of graphical AI technologies, such as MidJourney and Dall-E, should be granted copyright protection. The rule of the Copyright Office, so far at least, is that they should not. Maybe, the Office suggests, if the artist demonstrates sufficiently creative prompts. But so far, the Copyright Office has rejected copyright in every case presented to it.
This conclusion is not just wrong. It is a strategic mistake. There is no reason under existing law why the user of a machine that produces creative work shouldn’t be granted a copyright. And the chance to craft a regime that could efficiently secure copyright to the users of AI is an opportunity for copyright generally that we should not miss.
First, under existing law: though we’re all rightly fascinated by the machine part of AI creativity, we should not miss that it is a human — often an artist — that is operating that machine. If I snap a photograph of a landscape, a machine is helping me create no doubt. Yet equally without doubt, I would have a copyright for my creativity. My picture is an independent creation. Nothing in the law would require that I demonstrate significant effort or creativity before I get the copyright. My…
