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AI-Generated Art Copyright Protection Issues

Thaler v. Perlmutter case (2018)
- Dr. Steven Thaler applied for copyright protection for AI-generated artwork
- Copyright office rejected application - creative works must have human authors
- Thaler sued over rejection and lost, appealed ruling
- Decision expected by end of year
- Copyright office declined to comment
Copyright requirements for protection
- Work must be original, fixed to tangible medium, have human authorship
- Human authorship element rarely disputed/litigated previously
- Naruto monkey selfie case (2011) - wildlife photographer David Slater's camera used by monkey named Naruto
  - PETA argued Naruto should own copyright, not Slater
  - Federal court ruled photograph lacks human authorship because Naruto is monkey
Castanova case - first to address copyright conundrum
- Artist/computer scientist Chris Castanova used MidJourney for graphic novel artwork
- Personally edited some artwork using Photoshop
- Copyright office said edits too minor for copyright entitlement
- Copyright office stated sufficient original human authorship could warrant protection
- Castanova's attorney called decision incorrect and unsustainable
Implications of copyright denial
- Without copyright registration, creators cannot meaningfully commercialize AI-assisted work
- Federal appellate court may expand human authorship definition
- Congress may be lobbied to redefine human authorship for contemporary society

Technology impact on name/image/likeness rights
- AI makes it exceedingly easy to co-opt/repurpose someone's name, image, likeness commercially
Ghost Writer Drake/Weeknd deepfake case
- Anonymous producer used generative AI to fake Drake and Weeknd voices
- Song "Heart on My Sleeve" had 600,000 Spotify plays before removal
- Pulled following copyright infringement complaint from Universal Music Group
Kyland Young v. Neocortex (Reface app) lawsuit
- Former CBS Big Brother contestant sued over face in app's library
- Face available for paying users to edit without consent
- Violates right of publicity - commercial use of image without permission
- Samsung/Vanna White precedent (1992) - robot in print ad resembled Wheel of Fortune host
  - White sued Samsung for right of publicity violation and won
- Neocortex defenses:
  - Young's images no longer available in app
  - App output is derivative, Copyright Act preempts right of publicity claim
- Legal expert believes Neocortex will have difficulty defeating Young's claim

Artist group lawsuit (2023) against AI companies
- Artists claim copyrighted works scraped online to train large language models
- Defendants include MidJourney, Stability AI
- Artists never licensed work to defendants
- Argue AI artwork constitutes copyright infringement due to similarity to originals
Substantial similarity legal standard
- Courts focus on similarities, not differences
- Examine similarities of protectable elements (subjects, camera angles)
- Getty Images example - similar subjects and camera angles in AI output
- Stability AI didn't respond to comment requests
Legal precedent for data scraping
- HiQ v. LinkedIn case - recruiting software scraped publicly available LinkedIn data
- Court ruled scraping publicly available information is acceptable
- Training data use alone probably legally acceptable
- Platforms must ensure output doesn't constitute copyright infringement
Future concerns with OpenAI's Sora text-to-video tool
- Public release may create more copyright issues
- Cityscapes of Tokyo, New York, Paris might create recognizable versions of famous trademarks
- OpenAI declined to comment

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