Category: Art

Are AI Prompts Authorship in Copyright Law?

The production of creative works by artificial intelligence (AI) provokes many responses—philosophical, cultural, economic, and legal. I have already argued against copyright protection for works created by AI, supporting the longstanding doctrine that copyright rights can only attach to works of human authorship. But one paragraph in a recent article by attorney Adam Adler raises a potentially difficult question as to whether human prompts directing an AI to produce work could ever constitute authorship of the resulting work?  Adler writes:

… proponents of AI art don’t have to look very hard to find the required creative contribution. The most prominent AI works are generated through trial and error using specially crafted word prompts. For example, Jason Allen, the winner of the Colorado State Fair, spent 80 hours crafting the prompts he used to generate the art and tested over 900 different prompts before settling on the winner. Given the sensitivity of AI art generators, one could argue that the selection and refinement of prompts (at least as they are used today) involves significant creative work, analogous to placing a camera or framing a shot. And because a human’s prompt selection informs the creation of the entire work, there would not be any obvious way to disentangle the creative and non-creative elements of the work

Whether Adler endorses the view that the prompts in this example should vest James Allen with the rights of authorship in the resulting image, he is probably correct that advocates for copyrightability of AI works will advance this argument. But is the position valid? If I ask a friend to paint a picture of a weeping willow by a brook, my broad description does not constitute even joint authorship in the painting, and that example is arguably no different than my recent playing around with DALL-E 2 writing prompts with an existing painting in mind—Henry Wallis’s “Chatterton” (1856).

Although the results were nothing like the original work (and I am admittedly a novice propter), the image on the left could, eerily enough, be passed off by a would-be forger as an early sketch in the development of the Wallis painting, and it was admittedly astounding to watch these, and other variations appear in a matter of seconds.

PROMPT: A painting by Henry Wallis of Chatterton wearing purple pants and a stained shirt, strewn across his deathbed in a garret.
PROMPT: A painting by Henry Wallis of the poet Chatterton wearing purple pants and a stained shirt, strewn across his deathbed in a garret, the bottle of poison on the floor.

But returning to the theme of this post, I maintain that I did not author these images or the other variations output by DALL-E 2. Authorship flows from the creative choices made by a human, and there would need to be a colorable nexus between my prompt writing and the selection and arrangement of the choices made in the work—in this case a visual work—upon its fixation.

Prompts by themselves may be protectable “literary works” under copyright law—not unlike computer code, which can be sufficiently creative while also serving a utilitarian function as a set of instructions. But the potential copyrightability of prompts themselves does not necessarily extend to protection of the resulting work—not even in the case of Allen writing complex prompts into the app Midjourney to produce the visual work he called “Théâtre D’opéra Spatial.”

Neither the 80 hours Allen spent nor the 900 different prompts he tested has any bearing on a potential claim of authorship in the resulting image because copyright does not protect “sweat of the brow.” Copyright also does not protect ideas or concepts; and the incident of copyrightability is agnostic with regard to the author’s intent, message, or methodology. Unless there is a lack (i.e., less than a modicum) of originality in the work, copyright attaches upon fixation, and without consideration as to how or why the work was made. But the Allen example implies a potential difficulty in the doctrine to which Adler alludes in his description.

Given the time and energy Allen spent on the prompts, we can assume he developed a somewhat complex set of instructions, and it is conceivable that there may be a point at which a creative arrangement of prompts could approach a defensible claim of human authorship in the resulting work output by the AI. But it’s tricky, and I am skeptical.

Ordinarily, the moment a work is fixed in a tangible medium, the human’s creative choices may be inferred, credited solely to the human, and the choices need not be explained. In the photojournalist’s image of the factual event, it is longstanding doctrine that the existence of the image itself is evidence that she made sufficient choices (even in a second or two) to meet the “modicum of originality” threshold, and copyright rights are vested in her without asking her to describe or defend the choices made.

AI production may frustrate this doctrine in the near future by providing a reason to ask how a vast amount of work has been produced and about the nature of the human involvement in its production. Then, even if prompts may be protectable literary works on their own, the consideration as to whether this confers authorship to the human in, for instance, a resulting visual work or music work output by the AI implies a case-by-case consideration of copyrightability that would be administrative chaos for the Copyright Office.

It is hard to imagine a generally applicable doctrine that would harmonize the human authorship requirement with a definable nexus between prompt writing and the resulting work, and this suggests that the law must hold that copyright does not attach where an AI has made any (and likely most) of the creative “choices” in the work being claimed.

This view is consistent with the purpose of art and the purpose of copyright—both of which are profoundly human constructs. Neither copyright’s utilitarian origins (i.e., the author must earn a living), nor its civil rights origins (i.e., the product of the author’s mind is naturally his property) has any meaning whatsoever to a machine, just as machine made “art,” in my view, will ultimately mean nothing to humans.

Art without human creators may be decorative, interesting to a point, useful, entertaining, or even conducive to computer science in other contexts, but the products themselves are bloodless in every sense. Making art and engaging with art is one of the most human of all activities—transcendent and spiritual for many—and I have no idea why it would ever be outsourced to computers. One might as well suggest that the Buddhist set his mobile device in front of the alter to chant for him while he does something else with his body, mind, and hands.

When Henry Wallis revealed “Chatterton” at the Royal Academy in 1856, it caused a stir—both because it was considered a masterwork made early in the painter’s career, and because its romantic yet grim subject matter was viewed by many as a comment on the poor treatment of artists. Chatterton’s suicide by arsenic at the age of seventeen was believed to be at least partly the result of his abject poverty due to the failure of publishers to pay him for his writing. His “Last Verses,” found with his lifeless body, contain an 18th century version of the artist who was supposed to live on “exposure” rather than compensation.

Farewell Bristolia's dingy piles of brick,
Lovers of Mammon, worshippers of trick!
You spurned the boy who gave you antique lays,
And paid for learning with your empty praise.

Two and a half centuries later, “Lovers of Mammon” have invested billions in technologies and business models designed to devalue creative work and infringe copyright rights at massive scale. And now, we enter the next phase, when machines are being “trained” on volumes of human-authored works to potentially replace humans in the production of literary works, visual arts, music, and perhaps eventually, performing arts. And, as usual, the technology is advancing apace without any consideration as to whether it can reasonably be called progress.

Illustration by: zdeneksasek

An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.

Author Bynum Petitions SCOTUS for Remedy to State Copyright Infringement

I have written extensively about state sovereign immunity (a.k.a.,11th Amendment immunity) as it relates to copyright owners’ inability to hold states and state actors liable for recklessly and knowingly infringing protected works. State immunity for violations of federal statutes against persons is a maddening subject—rife with judicial and historical contradictions and implications that reach far beyond intellectual property. Among the many infuriating aspects of the immunity story is that, in theory, persons injured by state violations of their federal rights can pursue “other remedies” when they are barred from suit in federal court. In theory. But not in Texas.

Texas does not equivocate: it rejects any remedy for victims whose intellectual property is blatantly stolen—which even Texas cannot deny happened here.

That statement comes from sports author Mike Bynum’s petition for certiorari to the Supreme Court in response to Texas’s and the Fifth Circuit’s hard-to-follow rationales for denying Bynum any remedy whatsoever for the undisputed theft of his intellectual property. Specifically, Bynum was working on a book about the legendary “Dixie Classic” football game of 1922, during which the “12th Man,” E. King Gill who, though not a member of the team, suited up ready to play because so many members of the Aggie squad had been injured that day.

In my post published at this time last year, I detailed the facts of Bynum’s complaint and the Fifth Circuit’s ruling. In summary, parties at the university’s athletic department copied and distributed Bynum’s unpublished manuscript, removing his name and copyright notice in the process. The material was ultimately distributed to an estimated 350,000 readers—the same audience that would have been interested in buying the book.

With a built-in fanbase and potential long tail interest in the work, the financial damage to Bynum is arguably substantial—but at any valuation, it was surely total. While most piracies cause at least some harm to the copyright owner, TAMU’s wholesale destruction of Bynum’s first publication opportunity effectively killed all financial interest in the author’s work-in-progress.

If that sounds like an illegal “taking” by the state, that’s what Bynum and others think, too—especially when they are barred by sovereign immunity from enforcing their statutory copyright rights. In fact, takings, unfair competition, torts, etc. have long been speculated as alternative remedies in the debate about sovereign immunity. Even the Supreme Court, in affirming that Congress’s Article I powers were insufficient on their own to abrogate state immunity, argued that the possibility of state remedies had “barely been considered,” by Congress.[1] And, as noted in that post last year, the Court, in filmmaker Rick Allen’s case against North Carolina (Allen v. Cooper) indicated that a copyright owner may sue a state entity in federal court “if he can demonstrate a constitutional violation and show that there is no remedy available in state court—which together would rise to a violation of due process.”

But as Bynum’s petition describes, the Fifth Circuit decided that 1) copyright infringement is never a taking because copyright rights are not property; 2) that his due process claim is barred on the grounds that the state could hypothetically provide an avenue for state remedy at some point in the future; and 3) that takings claims are altogether barred by sovereign immunity despite the fact that the Supreme Court has held that the Takings clause requires some compensatory remedy in federal court.

The case law underlying these matters is expansive and, as stated above, tangled in contradictory opinions dating back to the ratification of the Constitution. Every time I return to the subject, I feel like I’m starting over, and I will do readers the favor of not attempting to unravel every nuance in a single post. I suspect the Court will grant cert here because of the constitutional questions presented; because circuit splits are argued; and because of the states’ rights implications.

But one aspect I hope the Court will emphasize in Bynum’s case is the thoroughness with which TAMU took the whole value of his property interest in the manuscript—and even went so far as to remove evidence of his authorship and copyright claim, which is reckless as well as illegal. As the petition cites, the Court in Allen v. Cooper held that “copyrights ‘are a form of property” under the Fourteenth Amendment and that an ‘intentional, or at least reckless’ copyright violation may violate due process rights.”

The holistic nature of the state theft in Bynum may be instructive to the extent that photographer Jim Olive’s case against the University of Houston is otherwise held to inform these considerations. Olive sued the University of Houston for infringement of his aerial photograph, but the Texas Supreme Court held that the complaint was not ripe for a per se Takings claim on the basis that the university had not fully deprived the photographer of his right to exploit his copyright rights in the image in other contexts.

Even if that theory has merit as a Takings consideration (because it is no way to look at copyright), the Supreme Court in Bynum should carefully consider the contrast of that reasoning against the utter destruction to Bynum’s property interest in his book. “TAMU’s copyright violation was flagrant, damaging, and largely undisputed. Texas’s legal position—and the Fifth Circuit’s—is that states simply can steal copyrighted material with impunity. As state copyright violations continue to proliferate nationwide, that warrants this Court’s intervention,” the petition argues.

Indeed it does.

[1] Florida Prepaid v. College Savings (Rehnquist, 1999)

Photo by: Angelstorm