The Role of Human Creativity in Copyright Law

A recent article in The Hollywood Reporter explores TV and movie studios’ potential use of AI for generating scripts. Scott Hervey and Jamie Lincenberg discuss this and other statements in the article on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
An August 23rd article in The Hollywood Reporter had the title, “Studio’s Offer to Writer May Lead to AI-created Scripts that are Copyrightable.” The article acknowledged that copyright law doesn’t recognize works solely created by artificial intelligence, but the article theorized that by incentivizing writers to participate in the creation process, studios may have a better shot at getting that work protected. We are going to dissect some of the statements made in this article in light of the recent ruling by the D.C. District Court that AI works are not entitled to copyright protection on this installment of The Briefing by Weintraub Tobin.

Let’s set the stage with a recent ruling by Judge Howell in the lawsuit brought by Stephen Thaler against the Copyright Office based on the Office’s rejection of his application to register their work. A recent entrance to paradise. The work was created by an AI technology called Creativity Machine and was submitted for copyright registration in 2018 by Stephen Thaler as a work made for hire, in which Thaler listed the Creativity Machine as the author and Thaler as the copyright owner. In his application, Thaler left a note from the Office stating that the work was autonomously created by a computer algorithm running on a machine, and he was seeking to register his computer-generated work as a work for hire as the owner of the Creativity Machine.

Jamie:
We previously covered the Copyright Office’s rejection of Thaler’s application in March of last year. Basically, the Copyright Office rejected Thaler’s application because it lacked the human authorship necessary to support a copyright claim. Thaler appealed the rejection to the District Court for the District of Columbia, and the Court upheld the rejection of Thaler’s application, holding that human authorship is an essential part of a valid copyright claim.

Scott:
Right. The single legal question before the Court was whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation. The Court acknowledged that copyright is designed to adapt with the times and that copyright law has proven malleable enough to cover works created with or involving technologies developed long after the traditional media of writings memorialized on paper. But underlying that adaptability and that malleability has been a constant understanding that human creativity is at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.

Jamie:
The Court cited the 1884 Supreme Court case of Borough Giles Lithographic Company versus Serenay, which upheld the constitutionality of an amendment to the Copyright Act to cover photographs. In that case, the Supreme Court reasoned that photographs amounted to copyrightable creations of authors despite being issued from a mechanical device that merely reproduced an image of what is in front of the device because the photographic result nonetheless represented the original intellectual conceptions of the author.

Scott:
The Court said that at its founding, copyright was conceived of as a form of property that the government established to protect. It was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent the act of human creation and how to best encourage human individuals to engage in that creation and thereby promote sciences and the useful arts was and continues to be central to American copyright from its very inception.

Jamie:
The Court then cited to the numerous cases that stood for the proposition that human creation is a required element of copyright, including one of your favorite cases, I believe Naruto versus Slater, better known as the Monkey selfie case.

Scott:
Yes, that is one of my favorite cases.

Jamie:
Okay, so the Court made it abundantly clear that human creation is a required element for copyright protection to exist. The Court also noted that we are approaching new frontiers in copyright, and the increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is really necessary to qualify the user of an AI system as an author of a generated work and the scope of the protection obtained over the resulting image. But you wanted to tie this into the Hollywood Reporter article, right?

Scott:
So, the article was partially an update on this decision by the district court, but it was also an update on the Writers strike, and it discussed the August 11 proposal that was made by the AMPTP to the Writers Guild with regard to AI. The article concluded that based on certain wording in the proposal, studios intended to harness AI technology instead of banning it.

Jamie:
Well, it would be tough to outright ban AI since it’s going to be part of our day-to-day life, even more so than it already is now.

Scott:
True. But the article then proposes that by keeping AI on the table, the studios may be looking to capitalize on the intellectual property rights around works created by the tools. The article then quoted an AMPTP source as stating quote, “if a human touches material created by generative AI, then the typical copyright protections will kick in.” End quote. That’s not entirely true. On March 16, 2023, the Copyright Office issued a rule concerning the registration of works containing material generated by artificial intelligence. The purpose of the rule, which is really a policy statement, was to clarify the Copyright Office’s practices for examining and registering works that contain material generated through the use of artificial intelligence technology. The Copyright Office will not recognize a copyright in an AI-generated work, which means that any work generated by an AI technology is in the public domain from the moment it is created. And it’s free for everybody to use a final work product that includes both AI-generated content and traditional elements of authorship exercised by a human. Those would be components where the human exercise the ultimate creative control over how a generative AI technology interprets, prompts, and generates material, or where the human maybe selects or arranges AI-generated material in a sufficiently creative way, or where a human modifies the AI-generated material to such a degree that the modifications meet the standard for copyright protection. It’s only that portion of the work representing the human-authored aspect that would.

Jamie:
Be protectable, but it’s just that portion of the work over which a human exercised ultimate creative control that would be covered by copyright, not the entire work and not that portion of the work generated by AI. And also, the Copyright Office will require applicants to specifically exclude AI-generated content from a copyright claim.

Scott:
That’s correct. It seems to me that there still is a lot of confusion over what is and what is not copyrightable when AI is involved in the creation of the work. The article The Hollywood Reporter article proposes that studios may be able to avoid copyright reversion litigation, such as what’s going on with Top Gun, if AI were to create the IP. I don’t know that I agree with that. If AI were responsible for creating the IP, then that IP would be in the public domain from the outset. What studio would build a franchise around IP that it doesn’t own and can’t control?

Jamie:
Exactly.

Scott:
But to be fair, it’s really still not exactly clear what level of human contribution is required to trigger copyright protection over the human contribution portion of the work. Just the other day, August 30, the Copyright Office issued a notice seeking public comment on various copyright policy issues relating to AI and one of those issues was the copyrightability of material generated using AI systems. The notice states quote, “Although we believe the law is clear that copyright protection in the United States is limited to works of human authorship, questions remain about where and how to draw the line between human creation and AI-generated content. For example, are there circumstances where a human’s use of a generative AI system could involve sufficient control over the technology, such as through the selection of training materials and multiple iterations of instructions to result in output that is human-authored?” End quote.

Jamie:
Well, we certainly will report back on the results of the Copyright Office study. Thanks for bringing this to our attention, Scott.

Scott:
Thanks, Jamie.

Jamie:
Thank you for listening to this episode of the Briefing. We hope you enjoyed this episode. If you did, please remember to subscribe, leave us a review and share the episode with your friends and colleagues. If you have any questions about the things we covered today, leave us a comment.