Can a Work of Art Created by AI be Protected by Copyright?

Eleonora explored last year on this blog the complicated relationship between AI and copyright, see here.

We now learn that auction house Christies will sell in October a work of art titled 𝒎𝒊𝒏 𝑮 𝒎𝒂𝒙 𝑫 𝔼𝒙 [𝒍𝒐𝒈 𝑫 (𝒙))] + 𝔼𝒛 [𝒍𝒐𝒈(𝟏 − 𝑫(𝑮(𝒛)))], Portrait of Edmond de Belamy, from La Famille de Belamy, which was created using AI.

It is the work of a Paris-based collective, obvious art, founded by Pierre Fautrel, Gauthier Vernier and Hugo Caselles-Dupré. The work was created using Artificial Intelligence (AI) technology, more precisely the Generative Adversarial Networks technology invented in 2014 by Ian Goodfellow, which can create images. The name of the work, Edmond de Belamy, is an homage to Ian Goodfellow, whose last name can be translated in French as “Bel ami.”

Edmond de Belamy (source: Artnet)

Obvious art created a program, fed it with information about some 10,000 portraits from the 15^th to the 19^th Century, and Edmond de Belamy was printed. The whole process is explained on obvious art’s website and also here.

The portrait shows a man painted over a black and gray background from which he appears to emerge, dressed in black, with a white collar, in a fashion reminiscent of 17^th century Dutch paintings. His features are not precisely lineated and one does not even see his nose. He is looking at us from an angle, and appears to have been painted by large brushstrokes.

The collective’s goal was to prove that machines can also be creative, just like humans (see this interview in French). It is an algorithm which created the work. Does that mean that Edmond de Belamy cannot be protected by copyright?

Is Edmond de Belamy the new Naruto?

Indeed, as mentioned by Eleonora, the Naruto case [see here] may give us some clues on how a US court would rule over the copyrightbility of a work created by AI.

Obvious art used the formula of the loss function of the original GAN model as the signature for the painting they created. If a program is the author of the work, then the work cannot be protected by copyright.

The U.S. Copyright Office clearly stated in its Compendium of U.S. Copyright Office Practices that a work must be created by a human being to be protected by copyright, and that“[t]he Office will not register works produced by nature, animals, or plants,” giving as an example a work which cannot be protected by copyright a “photograph taken by a monkey.” It could now add “a painting created by AI.”

This is not the first time that AI was used to create a painting. In 2016, a team fed a computer data about 346 Rembrandt paintings and the result was a 3-D printed portrait looking just like one Rembrandt could have painted, the “Next Rembrandt.” The fake (or next) Rembrandt was made out of some 148 million pixels and 150GB of rendered data.

Ron Augustus, director of SMB Markets for Microsoft, who was part of the “Next Rembrandt” project, said in a video interview (@1:00) that they “used technology and data like Rembrandt used his spades and his brushes to create something new.” This argument suggests that whomever used AI technology as a tool to create a work could be its author, just like Rembrandt. ‘Something new’ is original, and originality is required to be protected by copyright.

But even if we consider AI to be a mere tool, it is not a tool like a spade or a brush, as this tool had to be created and could be protected by copyright.

Computer programs can be protected by copyright and software, as it is a computer program, can be protected. A software is defined by the copyright Act as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result” and U.S. courts use an “abstraction-filtration-comparison test” [see here for example] to find out which elements of a computer program can be protected by copyright.

If the tool used to create a work is protected by copyright, does that mean that the work thus created is also protected? Not necessarily, as Section 721.6 of the Compendium specifies that “ownership of the copyright in a work is distinct from ownership of any material object that may be used to create that work. The fact that the author used a computer to write an article, short story, or other nondramatic literary work does not mean that the work is a computer program.”

Therefore Edmond de Belamy cannot be protected by copyright. But, wait, there could be another way.

AI and Conceptual Art

Edmond de Bellamy is not a lone figure, but has relatives, also created using GAN, in fact, he has a whole genealogical tree (see here, here and and here).

While Edmond de Belamy may not alone be protected by copyright, it could be argued that obvious art’s project, as an ensemble, could be protected as a work of art. Failing to do so would further jeopardize the complicated relationship between conceptual art and copyright.

The portraits created by AI formed a genealogical tree, a fake family complete with made-up names, and could be considered original enough to be protected under Feist as an original compilation. However, a sole portrait is not protected by copyright. Should wannabe buyers of the Bellamy portrait consider buying his whole family?