(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 machine-aided creativity would be protected, absolutely.
Using Dall-E should not change the matter. Yes, the creativity that is produced when I prompt the system is produced largely by the AI — in the sense that it would be difficult to produce it without the AI. But how easily could I take a landscape and render it into a photo? Effort is not the measure for copyright.
The Copyright Office suggests that maybe a sufficiently complicated set of prompts might qualify for copyright. But this is exactly the wrong solution. Complexity in copyright abounds and has led some of us to call fair use the right to hire a lawyer. (Though the Supreme Court’s recent elimination of fair use for commercial remix creativity may make this very simple! Ugh.) The Copyright Office’s rule would make copyright itself the right to hire a lawyer. What we don’t need in copyright are more lawyers. What we do need is a simple regime that creators can rely upon to…