Why AI-Generated Art Should Be Copyrightable
The expression that artists will put AI in their toolbox points to the reason why AI-generated art should be copyrightable.
AI-generated art should be copyrightable because it is indeed possible to create AI-generated art with enough human intervention and creativity to satisfy the requirements for copyright. Further, we argue that there is often enough human intervention in AI-generated art to satisfy the “guiding human hand” requirement.
This is because AI is a tool, as much as any other art tool, for human creation and fixation of ideas into a tangible medium of expression. In other words, AI-generated art is created by a human author using AI as a tool for artistic expression. It is akin to using paint, paintbrushes, pencils, pastels, or even the combination of an iPad, stylus, and Procreate app to create artwork.
AI-generated art possesses human creativity to the degree that the human author directs the AI tool to create images with a certain color scheme, theme, ambience, etc. That means there is, more often than not, a “guiding human hand” that directs the creation of AI-generated art.
Even in the case of the Creativity Machine, Thaler directed the machine create hallucinatory images and a fictional narrative about the afterlife. This could mean that the works created by the Creativity Machine reflect more human direction and creativity than claimed in the copyright application for works created by the machine. If Thaler did not list the Creativity Machine as the sole author of the AI-generated art and appealed to his influence on the machine in creating the art, the Copyright Office’s decision could have turned out differently.
Assuming that an AI-generated artwork meets the other criteria for copyright eligibility (originality and fixation), the artwork should be considered copyrightable. In other words, based on current copyright laws, AI-generated artwork is as copyrightable as any other work of art that meets the criteria for copyrights, and legal protection should be granted to the human manipulating the AI machine to create the art.