The Curious Case of AI Art and Copyright: My Experience With “Mountain Dancer II
On August 4, 2023, I decided to push the boundaries of copyright law by filing for copyright of my AI-generated artwork, "Mountain Dancer II." This wasn't just about securing protection for a single piece; it was a deliberate move to provoke a ruling from the U.S. Copyright Office on AI-generated content, an area where their policies had been notably unclear. I wanted to test the system, especially considering their earlier statements about needing more time to decide on the copyrightability of AI works. After nearly a year of waiting, I finally received their decision, which turned out to be a significant insight into how copyright law might evolve in the age of artificial intelligence.
The Experiment: Testing Copyright Policy
Back in early 2023, the U.S. Copyright Office had issued a blanket statement indicating that they needed more time to decide on the copyrightability of AI-generated works. This uncertainty presented a unique opportunity for me to test the system. As part of this effort, I documented my journey and thoughts in an article on MakeUseOf, where I explored the complexities and potential loopholes in copyright law regarding AI art.
In particular, I was curious about whether or not the U.S. Copyright Office would grant copyright to a photograph that I took of the AI artwork, provided what we already know about their statements on photographs:
Originality and Protection: Copyright protects original works of authorship, including original photographs. A photograph is considered original if it is independently created and possesses a sufficient amount of creativity. Creativity can be found in the photographer’s choices regarding angles, lighting, timing, and the composition of the subject matter.
Automatic Protection: Copyright protection exists from the moment an original work is fixed in a tangible medium, such as when a photograph is taken. There is no requirement to register the work for it to be protected by copyright, although registration provides additional legal benefits.
Rights of the Photographer: As the copyright owner, a photographer has the exclusive rights to reproduce, distribute, display, and create derivative works based on the photograph. This includes making and selling copies, adapting the work, and publicly displaying it.
Registration: While copyright protection is automatic, registering the work with the U.S. Copyright Office makes a public record of ownership and is necessary for certain legal benefits, such as the ability to bring an infringement lawsuit and seek statutory damages and attorney's fees.
Works Made for Hire: If a photograph is created as a work made for hire, the employer or commissioning party is considered the author and owns the copyright, rather than the photographer. This typically applies to works created within the scope of employment or under a specific contract.
The Ruling: What Happened?
Upon filing my application, I received a letter from the U.S. Copyright Office. They refused to register my photograph of "Mountain Dancer II," stating that it lacked the necessary authorship and creative expression to support a copyright claim. According to their assessment, my photograph was merely a digitized version of the AI artwork and did not exhibit enough originality.
Here is the image (not the actual image of the photo):
I recall noting that I had performed creative edits using Adobe Photoshop and Luminar AI to enhance the original image that I prompted Midjourney to create. You can see the texture clearly in this version, where it was not there in the original. But my intention wasn’t to drastically change the image in the editing process and then photograph it. I had initially offered this piece for sale and only intended to make it pop so that it would look great on archival printing paper.
Context: The US Copyright Office's Stance on AI
At the time of my filing, the U.S. Copyright Office was actively examining the legal and policy issues surrounding AI technology. They convened public listening sessions and hosted webinars to gather insights and issued a notice of inquiry that received extensive public feedback. This initiative aimed to explore the scope of copyright for AI-generated works and the use of copyrighted materials in AI training.
Here’s what the U.S. Copyright Office stated at the time of my submission:
"In early 2023, the Copyright Office launched an initiative to examine the copyright law and policy issues raised by artificial intelligence (AI) technology, including the scope of copyright in works generated using AI tools and the use of copyrighted materials in AI training. After convening public listening sessions and hosting public webinars to gather and share information about current technologies and their impact, the Office published a notice of inquiry in the Federal Register in August 2023 that received over 10,000 comments by the December 2023 deadline. In 2024, the Office plans to issue a report in several sections analyzing the issues, which will be published as they are completed" (Copyright.gov)
My Eyebrow-Raising Observation
What strikes me as curious is the potential inconsistency in how copyright standards are applied. Photographers often claim copyright protection for straightforward photos of famous artworks, like the Mona Lisa. You can find tons of these images online, even on Wikipedia. So, what's the real intention when photographers shoot artworks in museums? Generally, they aim to frame the shot perfectly, centering the artwork and adjusting the background. Is this creative enough for copyright? That's essentially what I did—I sent the Copyright Office a photo of the AI artwork without any background. Maybe that wasn’t deemed creative enough, and apparently, it wasn’t.
This serves as a cautionary tale for photographers who claim copyright for not only AI art but also other people's artworks. First off, if you’re sharing just a digital image of someone’s art, you can’t technically copyright it. Take a straightforward photo of graffiti, for example. Secondly, if you photograph it and want to ensure copyright protection, you should submit it to see if it qualifies.
I thought I had a solid case for copyrighting "Mountain Dancer II." Turns out, I was wrong. I even wrote an article confidently stating that a photograph would get copyright protection. But it didn't.
Providing the PDF
For those interested in the specifics of the ruling, I am making the refusal letter available for download. This transparency can help other artists understand the current landscape and prepare for their own copyright applications.
If It’s Important To You, Register Your Work
My attempt to secure copyright for "Mountain Dancer II" was more than just an effort to protect one piece of artwork. It was a calculated move to challenge and clarify the U.S. Copyright Office's policies on AI-generated content. The response I received underscores the necessity of meeting strict authorship standards to qualify for copyright protection, regardless of whether the artwork is AI-generated or created by another artist.
While the ruling wasn't exactly what I had hoped for, it wasn't entirely unexpected either. As photographers, we often believe that capturing and producing a photograph inherently grants us ownership and authorship. However, this experience serves as a reminder to carefully consider the legal aspects of our work, especially when claiming copyright. This is crucial when dealing with photos of other people's art or AI creations, where the boundaries of authorship can be murky. The takeaway is clear: if your work's protection is important to you, make sure to register it.
