All the above are famous writers. The first two have copyright protection.
Writers can copyright their works. What protection does a human writer have who claims protection against copying when a text is generated by GAI on instruction from that human?
The US Copyright Office grants protection only to work with significant human involvement; we call that human the “author.” But each work by GAI is created upon command or request by a human. Is that work protectable by copyright, because GAI does not awaken late at night, turn itself on and write a ghost story or create an image without a human telling it to and giving it some sort of guidance–the human is involved. How much guidance need the human give to GAI before the human can be said to be an “author” or an artist?
There is a pending legal case on appeal from the refusal by the Copyright Office to grant a copyright to a person who created a digital piece using AI. The artist, who won an art award with the piece, claims his work used AI as a tool of his artistic expression. Where is the line? How much must the person “do” to be the author or artist, and thus to be protected from “infringement”?
The dividing line is a matter of judgment and experts are drafting proposed guidance to be applied by the Copyright Office; last guidance in March suggested that AI-generated work can be protected if a human selects or arranges AI materials with sufficient creativity that “the resulting work as a whole constitutes an original work of authorship.” Any reader want to try to apply that standard in a consistent, legally useful manner to a diverse series of art works, poems or stories?
A photographer takes a picture with a Leica film camera, a machine, and prints it through a commercial printer without alteration. It can be subject to copyright. A photographer takes a picture with my new Apple I-Phone 14 (or the rumored and inevitable 15, expected in a couple of months) and prints it right off the phone electronics with no alteration. It can be subject to copyright. An artist commands AI to make an image of a horse walking on water, says no more, and prints the AI result with no alteration. Can you get a copyright of that horse walking on water, in the name of the photographer? Tomorrow, a person in Paris, not having seen the prior work, asks AI to make an image of a horse walking on water and says no more, and AI again produces the same, or virtually the same, image– is the Paris picture an illegal infringement?
Disclaimer: Note that an experienced Intellectual Property attorney to whom I showed a draft of this post suggested that existing law has dealt with these kinds of issues many times and that there are a lot of pre-AI legal precedents to apply. He also did not think much of a copyright claim for my horse walking on water; perhaps my exact version would have narrow coverage, but likely not even that, let alone protection against a subsequent AI version. I do not question him, although I suspect that with the growth of GAI there is a growing push to expand the copyright protection and alter what in simpler times might be somewhat settled law. (This post speculates on issues that will be raised in the future; as with all posts, and per my blog site ground-rules, this post is not legal advice and should not be relied upon as such.)
[Disclosure: the contents of this post are based upon reportage contained in, and concepts suggested by, the article entitled “How to Think About AI,” Harvard Law Bulletin, Summer 2023. In case you are wondering, that article is protected by copyright.]