Robots Rising: should machines be copyrighted?

When we last talked about non-fungible tokens (NFTs), we focused on how the creators of the artworks that are sold with the alphanumeric codes that make up the NFTs almost always retain the copyrights of these works. And that the buyer only appropriates the code, which is then registered forever on the blockchain. The creator of the artwork can then exploit that artwork in any way they see fit without interference from the NFT owner.

However, many works of art associated with NFTs are at least partly created by robots, benevolent, of course, but robots nonetheless. These bots rely on algorithms and sometimes artificial intelligence to mass-create digital artwork in various iterations, each marketed as a “unique” piece of art to pair with your NFT. There are 10,000 CryptoPunks, for example, each of which was generated by software code.

There’s usually a humanoid involvement, of course – in many cases a person will write the software code, download a set of data to a computer, and apply creation protocols to the data, which is then, according to those protocols, synthesized and converted to create Art. But the actual execution of the art – fixing it in a digital medium so that it can be perceived by the viewer – is done by the robot.

Dr. Stephen Thaler would be a good person to explain how it all works. A very interesting man who has worked with diamonds, brains and computers, but not always at the same time, he applied in 2018 to register a work called “Creativity Machine” with the US Copyright Office. He ran into a hurdle in doing so, however, because for a work to be registrable, a claimant must identify the creative content for which the Human the applicant is responsible.

In Thaler’s application, he said, problematically, that the “Creativity Machine” work was “autonomously created by a computer algorithm running on a machine” that belonged to him. The work, he said, was done “for hire,” a designation typically applied to work created by an employee for an employer as part of their employment. Thaler informed the Copyright Office that the work was created by his robot artist as part of his robot duties.

The Copyright Office, in dealing with Thaler’s appeal against the denial of his registration for “Creativity Machine”, was skeptical because “human authorship” is required to make a work registrable. And although the paternity threshold for registration is quite low, with most work at the primary school level passing, that work must be the product of humanity.

The Copyright Office makes it clear that the “crucial question” in determining whether there is sufficient human authorship is whether a computer “is merely an assistive device” or “actually designs[s] and run[s]» the « traditional elements of authorship ». Many artists use computers and other “machines” – for example, a camera – to create their work, and as long as they “design” the work, their authorship is sufficient for protection. Therefore, a work created on a computer will not be considered to have been created by a computer, except in rare cases.

Thaler’s work, in which he claims to have made no contribution as a human, is one such example. His work, like that created by Naruto in the famous Ninth Circuit case in which it was ruled that monkeys cannot own copyrights, lacked the necessary human dye to be copyrightable.

Finding that Thaler failed to provide evidence of “sufficient creative input or intervention” by him or anyone else, the Copyright Office denied his claim. He appealed all the way down the chain, but the Copyright Office held firm, finding no reason to deviate from the longstanding approach of only assigning copyright records. than to humans.

In doing so, the Copyright Office has pointed out that its collection excludes the recording of a “machine-produced” work unless there is some creative human input. Thaler, whose candidacy was categorical as to the refusal of any contribution of this type, was not retained on this point. He was so explicit on this issue that it seems he had more interest in arguing that robots should have the ability to hold a copyright registration than he was in obtaining a registration of copyright.

Most original works of art created on and even primarily by a computer will be copyrightable. Someone can imagine an application that clearly indicates that the writing of the algorithm and the selection of the various data inputs and the arrangement of the creation protocols would easily meet the threshold of human “creative input or intervention” required. But Thaler claimed that the robot and the robot alone did the thing, and he was denied registration as a result.

The Copyright Act, which aims to encourage the creation of new works of art, including those that push the proverbial boundaries, would apparently embrace the use of computers to create works and seek to encourage artists from digital media to develop and create innovative works. And copyright law protects “the fruits of intellectual labor,” which would apparently cover the intellectual labor of writing a sweet algorithm and filling it with the most carefully curated and creative data. But, in a most telling parenthetical interposition, the Copyright Office notes that the Compendium states that these fruits are to be “founded upon the creative powers of the [human] mind” to be protectable, leaving aside cold works founded in the mind of the autonomous robot.

This has ramifications for NFTs whose associated artwork is algorithmically or computer generated. If the Copyright Office finds that these works are not copyrightable because they are created by machines without the required human input, this will further devalue the value of the works as assets of intellectual property, although it is unclear whether this would affect symbolic value. .

Although Thaler’s complete disavowal of any human involvement in the computerized development of “Creativity Machine” made it a political decision and a relatively easy decision for the Copyright Office, there are sure to be future cases in which artists who create on and with computers will further blur the line between what is and what is not human-generated art. And what is protected by copyright law.

Scott_Alan_BurroughsScott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and regularly writes and speaks on copyright issues. He can be reached at [email protected]and you can follow his law firm on Instagram: @veniceartlaw.