Copyright and AI Creations: Key Points for Startups and Beyond

Can AI artwork be copyrighted?

As Christopher W. Savage and James Rosenfeld have concluded in this post, the U.S. and China are taking different legal routes to answering that question. These excerpts highlight the differences in how jurisdictions may approach copyright for AI-generated works, which can be crucial for startups that rely on emerging technologies and therefore must navigate a burgeoning patchwork of intellectual property standards.

Background: "In the United States, the Copyright Office last year famously denied copyright protection to pictures in a comic book, Zarya of the Dawn, after it learned that the pictures had been generated using Midjourney, an image-generating AI. The artist, Kristina Kashtanova, used an iterative process to create the images."

U.S. Copyright Decision: "The Copyright Office preliminarily concluded that the information in Kashtanova's application was 'incorrect or, at a minimum, substantively incomplete' and initiated cancellation proceedings because, by Kashtanova's own admission, she was 'not the sole author of the entire work and, at a minimum, the claim should have been limited to exclude non-human authorship.'"

Separate Case in China – Li v. Liu: "Mr. Li used Stable Diffusion, another image-generating AI model, in a manner similar to the way Ms. Kashtanova used Midjourney in the Zarya of the Dawn case: he started with some initial prompts, looked at the image Stable Diffusion generated in response, and continued to modify and refine the prompts until he got the picture he wanted; he then posted the final image online. The case arose when Ms. Liu obtained a copy of the picture and used it without any attribution or compensation to Mr. Li. Mr. Li sued, seeking an apology, removal of the picture from Ms. Liu's online site, and monetary compensation."

Different Approaches – Authorship vs. Achievement: "With respect to copyrightability, as Zarya of the Dawn shows, under United States law, without an author there can be no copyright. Chinese law, however, approaches the question from a slightly different angle, holding that for a work to be copyrightable, it must be 'original' and 'an intellectual achievement.' The [Chinese] court had no trouble finding that Mr. Li's image was 'original'—it did not exist before his efforts with Stable Diffusion."

Recognition of AI as a Tool: "From one perspective, the [Chinese] court's treatment of the AI-generated work as copyrightable and of the AI user, Mr. Li, as the author, makes sense: it is not unreasonable to recognize that AI models are a newly developed kind of tool that allow people to express their own originality and creativity."

Other International Perspectives: "[The Chinese court's] view is consistent with other nations' treatment of similar issues. For example, in British Commonwealth countries, the law specifically states that for a 'work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken'—in this case, Mr. Li. And, while there is no decision from EU courts of which we are aware on this specific topic, scholarly commentary on EU law suggests that the result under EU law would be in accord with the decision in Li v. Liu and Commonwealth-country law."

Divergence: "The Copyright Office determined that Kashtanova had not exercised sufficient control to be the 'master mind' of the work and thus could not be deemed the author (and the work, lacking a human author, could not be copyrighted). By contrast, the [Chinese court] found that plaintiff had made 'intellectual investment' and the picture reflected his 'personalized expression' sufficient to render him the author and copyright owner."

Implications: "Unless the Copyright Office changes its approach (whether on its own or based on federal-court decisions), the United States will be a bit of an outlier in that a work generated by AI, even after extensive input and refinement by a human, may not be copyrightable at all if the human fails to exercise sufficient control to be the 'master mind' of the final work."

Read the full post: Diverging International Approaches to the Copyrightability and Authorship of AI-created Works