Should You Be Allowed to Profit From A.I.-Generated Art?; The New York Times, September 27, 2024

 Kwame Anthony Appiah, The New York Times; Should You Be Allowed to Profit From A.I.-Generated Art?

[Excerpt]

"We attempt to attribute art whenever we can, and anything that’s only for purchase we either avoid or pay for. This particular piece seems to be available only in an Etsy shop, where the creator apparently uses A.I. prompts to generate images. The price is nominal: a few dollars. Yet I cannot help thinking that those who make A.I.-generated art are taking other artists’ work, essentially recreating it and then profiting from it. 

I’m not sure what the best move is...Name Withheld

From the Ethicist:

There’s a sense in which A.I. image generators — such as DALL-E 3, Midjourney and Stable Diffusion — make use of the intellectual property of the artists whose work they’ve been trained on. But the same is true of human artists. The history of art is the history of people borrowing and adapting techniques and tropes from earlier work, with occasional moments of deep originality...

Maybe you’re worried that A.I. image generators will undermine the value of human-made art. Such concerns have a long history. In his classic 1935 essay, ‘‘The Work of Art in the Age of Mechanical Reproduction,’’ the critic Walter Benjamin pointed out that techniques for reproducing artworks have been invented throughout history. In antiquity, the Greeks had foundries for reproducing bronzes; in time, woodcuts were widely used to make multiple copies of images; etching, lithography and photography later added new possibilities. These technologies raised the question of what Benjamin called the ‘‘aura’’ of the individual artwork...

As forms of artificial intelligence grow increasingly widespread, we need to get used to so-called ‘‘centaur’’ models — collaborations between human and machine cognition."

ChatGPT's Owner Asks For Proof That 'New York Times' Articles Are Original. Here's the Media Company's Response.; Entrepreneur, July 5, 2024

SHERIN SHIBU EDITED BY JESSICA THOMAS , Entrepreneur; ChatGPT's Owner Asks For Proof That 'New York Times' Articles Are Original. Here's the Media Company's Response.

"The New York Times sued OpenAI in December for copyright infringement, alleging that the AI giant used millions of its articles to train ChatGPT. Now OpenAI is asking for proof that NYT articles are actually original — and the NYT is calling the request "irrelevant, improper, and harassing."

OpenAI lawyers filed the request in New York district court on Monday. The ChatGPT-maker asked that the Times bring forth documents proving which portions of the millions of articles in question in the case "are original to the Times and what are not...

The NYT submitted a filing on Wednesday asserting that OpenAI's request "serves no purpose other than harassment and retaliation for The Times's decision to file this lawsuit.""

You Can Create Award-Winning Art With AI. Can You Copyright It?; Bloomberg Law, June 5, 2024

Matthew S. Schwartz, Bloomberg Law; You Can Create Award-Winning Art With AI. Can You Copyright It?

"We delved into the controversy surrounding the use of copyrighted material in training AI systems in our first two episodes of this season. Now we shift our focus to the output. Who owns artwork created using artificial intelligence? Should our legal system redefine what constitutes authorship? Or, as AI promises to redefine how we create, will the government cling to historical notions of authorship?

Guests:

• Jason M. Allen, founder of Art Incarnate
• Sy Damle, partner in the copyright litigation group at Latham & Watkins
• Shira Perlmutter, Register of Copyrights and director of the US Copyright Office"

Beijing Internet Court Recognizes Copyright in AI-Generated Images; The National Law Review, November 29, 2023

 Aaron Wininger of Schwegman, Lundberg & Woessner, P.A., The National Law Review; Beijing Internet Court Recognizes Copyright in AI-Generated Images

"On November 27, 2023 the Beijing Internet Court issued a decision recognizing copyright in AI-generated images. The plaintiff, Mr. Li, used Stable Diffusion (an artificial intelligence) to generate the image involved in the case and published it on the Xiaohongshu platform; the defendant, a blogger on Baijiahao, used the image generated by the plaintiff’s AI to accompany the article, and the plaintiff sued. The Court held that the artificial intelligence-generated image involved in the case met the requirements of “originality” and reflected a human’s original intellectual investment and should be recognized as works and protected by copyright law. This is the opposite of the decision reached by the U.S. Copyright Office in Zarya of the Dawn (Registration # VAu001480196) that did not recognize copyright in AI-generated images. Note this Beijing case is also different from the recent Thaler v. Perlmutter decision (Civil Action No. 22-1564 (BAH)) because Thaler was trying to recognize the AI as the author and not the person using the AI as a tool as author."

The Ed Sheeran Copyright Lawsuit Exposes The Absurdity of Music Ownership; Current Affairs, May 2, 2023

• Nathan J. Robinson, Current Affairs; The Ed Sheeran Copyright Lawsuit Exposes The Absurdity of Music Ownership 

"After all, the whole history of music (and the arts more broadly) is the history of taking what came before and reworking it. I don’t think it’s even possible to create something entirely original. Even the seemingly most original artists were often “original” in part because they were creative and eclectic thieves, taking from a diverse range of influences."

Stolen or Original? Hear Songs From 7 Landmark Copyright Cases.; The New York Times, April 27, 2023

Ben Sisario, The New York Times ; Stolen or Original? Hear Songs From 7 Landmark Copyright Cases.

"Here is a guide to some of the most consequential music copyright cases in recent decades, along with excerpts from their recordings.

But remember: It can be tricky, and even misleading, to compare recordings alone. In cases like these, the only material in question are the songs’ underlying compositions: the melodies, chords and lyrics that can be notated on paper. Elements specific to the performance captured in a particular recording — like the tempo, or the timbre of an instrument — are irrelevant.

Juries must decide not only if one song copies another, but whether the earlier song was original and distinctive enough to be protected by copyright.

“The problem with cases like this is that people ask the wrong question,” said Joe Bennett, a professor at the Berklee College of Music who works as a forensic musicologist in legal cases. “They ask the question, ‘How similar is song B to song A,’ whereas what they should be asking is how original is song A.”

Got that? In that case, put your headphones on and judge for yourself."

ChatGPT: what the law says about who owns the copyright of AI-generated content; The Conversation, April 17, 2023

Sercan Ozcan, University of Portsmouth; Joe Sekhon, Senior Lecturer in Intellectual Property Law, University of Portsmouth; Oleksandra Ozcan, Lecturer, University of Portsmouth, The Conversation; , ChatGPT: what the law says about who owns the copyright of AI-generated content

"The AI chatbot ChatGPT produces content that can appear to have been created by a human. There are many proposed uses for the technology, but its impressive capabilities raise important questions about ownership of the content.

UK legislation has a definition for computer-generated works. Under the Copyright, Designs and Patents Act 1988 they are “generated by computer in circumstances such that there is no human author of the work”. The law suggests content generated by an artificial intelligence (AI) can be protected by copyright. However, the original sources of answers generated by AI chatbots can be difficult to trace – and they might include copyrighted works.

The first question is whether ChatGPT should be allowed to use original content generated by third parties to generate its responses. The second is whether only humans can be credited as the authors of AI-generated content, or whether the AI itself can be regarded as an author – particularly when that output is creative."

Rise of the machines: Copyright in a world of AI; Phoenix Business Journal, April 17, 2023

Daniel Restrepo – Fennemore, Phoenix Business Journal; Rise of the machines: Copyright in a world of AI

"Recognizing the blend of human and automated works

In remedying these conflicts, courts have a few options before them. Courts can declare all works using AI fall into the public domain on the grounds that they do not meet the creative, original or human-created requirements, or they could simply grant AI works copyright protection as a matter of course. However, the former would disincentivize AI development and the latter would disincentivize human creativity. 

The third and more likely solution is somewhere in the middle, granting limited protection in AI works based on the degree of human involvement. The Copyright Office has recently taken this approach regarding an application for the comic book “Zarya of the Dawn,” granting rights to the human author’s writing and arrangement of AI-generated drawings, but not to the AI drawings themselves. This gradient, while perhaps frustrating to those who want greater clarity, is useful in determining the rights in the final product."

CNN FlashDocs to Examine Taylor Swift “Shake It Off” Copyright Lawsuit in “Taking On Taylor Swift” Premiering Friday, December 23 at 9PM ET

CNN; CNN FlashDocs to Examine Taylor Swift “Shake It Off” Copyright Lawsuit in “Taking On Taylor Swift” Premiering Friday, December 23 at 9PM ET

"CNN will investigate the copyright lawsuit brought by songwriters Sean Hall and Nathan Butler against Taylor Swift for her hit song “Shake it Off” in Taking On Taylor Swift. The case was settled and subsequently dismissed on December 12, 2022. Produced by the CNN FlashDocs unit, the hour-long special asks larger questions about creators’ rights and originality in an industry rocked by multiple lawsuits targeting some of the world’s biggest pop stars."

Artists fed up with AI-image generators use Mickey Mouse to goad copyright lawsuits; daily dot, December 16, 2022

Mikael Thalen, daily dot; Artists fed up with AI-image generators use Mickey Mouse to goad copyright lawsuits

"The issue surrounding AI art has already led to widespread protest and pushback from the art community. Just this week, artists on the art-hosting platform ArtStation began uploading identical images en masse that featured the caption “NO TO AI GENERATED IMAGES.”

Given just how new the technology is, it remains unclear what guidelines, if any, will be created to balance the rights of artists against the ever-expanding capabilities of AI."

The ‘Blurred Lines’ Case Scared Songwriters. But Its Time May Be Up.; The New York Times, March 24, 2020

Ben Sisario, The New York Times;

The ‘Blurred Lines’ Case Scared Songwriters. But Its Time May Be Up.

Decisions in copyright cases involving Led Zeppelin and Katy Perry suggest the open season on lawsuits could be coming to a close.

"“Before Led Zeppelin’s en banc ruling, plaintiffs were on a roll,” said Joseph P. Fishman, an associate professor at the Vanderbilt Law School in Nashville. “That string of events built a narrative that successful musicians really needed to be worried about being sued. Now, with the Katy Perry verdict being thrown out only a week after the big Led Zeppelin decision, that narrative may change.”

The two decisions addressed what has become a key question as more copyright suits have focused on song fragments: what is original about them — and thus can be copyrighted — and what are basic building blocks that cannot be owned by any songwriter?"

Keeping digitised works in the public domain: how the copyright directive makes it a reality; Europeana Pro, January 21, 2020

Andrea Wallace, Ariadna Matas, Europeana Pro; Keeping digitised works in the public domain: how the copyright directive makes it a reality

"The principle that works in the public domain should remain in the public domain once digitised, which Europeana has defended for almost ten years, was recently incorporated into European law. In this post, we interview Andrea Wallace, Lecturer in Law at the University of Exeter, about the importance of this provision for the cultural heritage sector and her research on Article 14.

For several years, Europeana – through its policies, standards, and communications – has advocated against the practice of institutions using Creative Commons licences on digital copies or surrogates of a work, when the original is out of copyright and they are neither the creators nor rightsholders. Our Public Domain Charter establishes that in order to achieve a healthy and thriving public domain, digitising a public domain work should not take it back to being protected and non-reusable. There is a danger of undermining the public domain, a central principle in copyright law.

After working to raise awareness on the issue, Europeana celebrates the adoption of Article 14 of the Copyright in the Digital Single Market Directive. This provision establishes that works of visual arts in the public domain shall remain in the public domain once digitised, unless the digitisation is original enough that it can attract copyright protection. All 28 member states will have to adopt it and make it national law (by June 2021). Andrea Wallace, together with Ellen Euler, has been researching the Article and its implications.

What issue is Article 14 trying to address?

Article 14 confronts the long-standing practice of claiming a copyright in non-original reproductions of public domain works. To attract protection, a work has to be sufficiently 'original' under copyright law. For a while now, there has been a lack of binding legal authority on whether reproductions of public domain works, like photographs of public domain paintings, are original enough to attract their own copyright. 

Because of this, cultural heritage institutions, picture library agencies, and other owners have been able to build business models around claiming copyright in public domain reproductions and charging the public a fee to use the images. But this has the effect of excluding the public from accessing out-of-copyright artworks, and it contradicts the rationale underlying the expiration of copyright and a work passing into the public domain. The public domain should be available for everyone to use for whatever purpose: to make new cultural goods, generate new knowledge, and so on."

Can You Change Two Words To A Song And Claim A New Copyright?; Above The Law, August 10, 2017

Krista L. Cox, Above The Law; 

Can You Change Two Words To A Song And Claim A New Copyright?

"In order to be copyrightable as a derivative work, the new work must “add new original copyrightable authorship.” We will (shall?) see whether these small changes were big enough to warrant copyright protection. And if a court indeed finds that it is, well, I guess that means it’s time for me to start marketing “Ringing Bells.”"

Waiting to Protect Intellectual Property Could Doom Your Startup; Kellogg Insight, August 3, 2017

Mark McCareins and Pete Slawniak, Kellogg Insight; Waiting to Protect Intellectual Property Could Doom Your Startup

"Based on insights from Mark McCareins and Pete Slawniak

It pays to be certain your idea is original.  

McCareins: A prior art search needs to be done to make sure that what you’re getting patented is really and uniquely your own.  There may be a temptation not to do a comprehensive search because it's expensive, but you don’t want to find out later that someone had the same invention.  

People say, “Well I got a patent so I’m good to go,” but that’s only half the battle. Even when the U.S. Patent and Trademark Office has granted a patent, that doesn’t mean a federal court might not come in later and invalidate that patent based on another party’s complaint.  

Slawniak: When you file a patent, look around and do a search. See what other folks in the industry are doing. See what other patents are out there. Read the scholarly work around technology in your field and have some conversations with people in the industry. Your patent is a reflection of your R&D investment and your technological advantage, so it's important to know exactly where that product differentiation is. An exhaustive search will ensure you have a strong patent, and hopefully help your patent issue faster. When you have something you believe has value, it’s worth the investment of time to develop and protect it. "

‘We Shall Overcome’ Copyright Case Moves Closer to Trial; New York Times, 11/21/16

Ben Sisario, New York Times; ‘We Shall Overcome’ Copyright Case Moves Closer to Trial:

"Along with the recent suits involving “Happy Birthday to You” and Woody Guthrie’s “This Land Is Your Land,” the case has focused attention on one of the central questions in copyright: finding a balance between protecting intellectual property on behalf of private owners, and giving the public access to famous songs whose origins may be murky.

For “We Shall Overcome” and “This Land,” the issue is also freighted with politics at a time when the songs are being embraced by protesters and activists on multiple sides of major issues.

The suit over “We Shall Overcome” was filed in April on behalf of a nonprofit group called the We Shall Overcome Foundation, and later joined by the producers of the 2013 film “Lee Daniels’ The Butler.” It argues that the song — which was adapted from a 19th-century black spiritual, although its origins may date back even further — should be declared part of the public domain."

MPAA Adds New Rating To Warn Audiences Of Films Not Based On Existing Works; The Onion, 10/20/15

The Onion; MPAA Adds New Rating To Warn Audiences Of Films Not Based On Existing Works:

"“We recognize how distressing it can be when viewers go into a film and suddenly find themselves confronted with jarring scenes containing a protagonist they’ve never encountered before, which is precisely why we created this rating,” said Joan Graves, head of the MPAA’s ratings board, who said the new category was added in part due to the thousands of complaints the organization has received from moviegoers who were upset they weren’t given advance notice that they’d have to make sense of the scenarios unfolding onscreen. “It’s important that today’s movie fans are aware upon entering the theater that none of what they will see has been adapted from a well-known comic book, television series, novel, video game, historical event, previous movie, or theme park ride.”

“Ultimately, it will be up to the consumer’s discretion as to whether a film is suitable for themselves and their family, but the O rating will explicitly caution people that they will have to pay attention during the movie and follow the storyline on their own,” Graves added.

Though sources said films requiring the new rating are comparatively rare, a spate of high-profile movies over the past several years that do not stem from any previously existing source material—including The Kids Are All Right, Her, WALL-E, Birdman, and Nebraska, among others—have left many viewers angered and perplexed. Citing test audiences they have observed, MPAA officials said that many moviegoers spent the entirety of such films in a state of distress, waiting for the moment when the Incredible Hulk, Katniss Everdeen, Wolverine, or another recognizable character from an established franchise would appear onscreen and clarify the meaning and direction of the film."