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Copyrights in the Metaverse: Does AI Qualify as an Author for the Purposes of U.S. Copyright Law?

A novel position came across the United States Distdict Court for the District of Washington, D.C.: Should the U.S. Grant copyright protection to AI-generated inventions and designs? At least one man, Stephen Thaler, the president and CEO of Imagination Engines, believes so.

The Complaint

In 2018, Thaler filed a copyright application covering an AI-generated work produced by one of his AI systems called the Creativity Machine. “A Recent Entrance to Paradise”, as it was so titled, is one part of a series of works depicting a simulated near-death experience.

"A Recent Entrance to Paradise" by the Creativity Machine

“A Recent Entrance to Paradise” by the Creativity Machine.

The best laid plans going astray, as they are often wont to do, the Copyright Office rejected that application on the basis that no human had authored the work. Thaler, in response, sued the United States Copyright Office, alleging that the Office’s denial of his copyright registration is “arbitrary and capricious” and not in line with existing law.

Mr. Thaler is no stranger to the advocacy of AI’s right to authorship under U.S. intellectual property laws. Indeed, Mr. Thaler recently appeared before the U.S. Court of Appeals for the Federal Circuit, arguing that his AI system “DABUS” is entitled to patent protection over two inventions it generated—one covering an improved beverage container and another covering a “neural flame” device to be used by search and rescue teams.

The Copyright Act, for its part, grants protection over “original works of authorship.” Mr. Thaler contends that the Copyright Act does not limit authorship to natural, human persons. The question then remains, however, as to what *does* constitute "authorship" for the purposes of U.S. Copyright Law? If a Court were to grant Mr. Thaler's AI's their copyrights, would the United States unknowingly be granting the right of authorship to all non-human entities? A similar case raised similar issues, namely a macaque monkey named Naruto, who took a "selfie" photograph. In that instances, the Ninth Circuit rejected the monkey's (or, a human with Naruto's best interests at heart) quest to obtain copyright ownership over his selfie.

Selfie taken by Naruto, a macaque monkey, with a camera owned by photographer David Slater.

Selfie taken by Naruto, a macaque monkey, with a camera owned by photographer David Slater.

What’s Next?

Throughout history, the question of an AI’s ability to create a work of authorship has not been an issue. Only recently have AI systems advanced to the point of being able to engage in the creative process without further human direction or interaction. Indeed, between 2002 and 2018, annual patent applications covering AI systems doubled from 30,000 to 60,000, with the overall share of patent applications which contain AI systems increased from 9 percdent to approximatelly 16 percent.

The outcome of Mr. Thaler’s lawsuits will have rippling effects on all creators who use AI in the course of authorship. With AI systems already being used to generate music, games, art, and prose, such works would be deems devoid of copyright if the courts maintain that direct human involvement is essential foe the creation of a work of authorship. While the courts should be extremely cautious in opening an intended can of worms, it is clear that the status quo indeed needs to change—to some degree—with the times. Indeed, should AI systems ultimately lose this battle in court, all works created by them could be used freely by anybody, despite the dramatic invetsments in AI systems that companies and individuals alike are contributing. This could end up have a chilling effect on the rate of progress in such markets.

As with most things in life, perhaps the answer is more complex than “sure, all AI-generated works are entitled to protection with the AI system as the proper author”. What is clear, however, is that the U.S. Copyright Law is beginning the end game of a game of chicken with the AI-driven economy of the future. The questions of AI authorship is not one that is likely going away any time soon, save for a dramatic reworking of the U.S. Copyright Law.

[View a copy of Mr. Thaler's complaint]


 

If you have any questions about hiring experienced and licensed U.S. copyright and trademark attorneys to represent you in front of the Copyright Office and/or the USPTO, we would be happy to discuss with you further! Please contact Gugliotta & Gugliotta, L.P.A. here, by phone at (888) 298-8580, by email at hello@inventorshelp.com, or by mail at 55 S. Miller Road | Ste. 203, Akron, OH 44286.

Gugliotta & Gugliotta, LPA publishes this blog for educational and/or promotional purposes only, not to provide specific legal advice. By using this blog site, you indicate that you understand there is no attorney-client relationship between you and Gugliotta & Gugliotta, LPA. This blog should not be used as a substitute for obtaining legal advice from a licensed attorney. In addition, statements made on this blog represent the viewpoints of the individual authors, and do not necessarily reflect the views of Gugliotta & Gugliotta, LPA, nor any of our clients.

Sharing Photos on Twitter is Copyright Infringement — A New Interpretation of the "Server Test"

"When the Copyright Act was amended in 1976, the words "tweet," "viral," and "embed" invoked thoughts of a bird, a disease, and a reporter," Judge Katherine B. Forrest noted before breaking with past precedent and holding media companies liable for copyright infringement for linking to a tweet containing a copyrighted photograph. 

Photographer Justin Goldman took a photograph of New England Patriots' superstar quarterback Tom Brady heading to a meeting to recruit NBA Superstar Kevin Durant to the Boston Celtics. Goldman then posted it on his personal Snapchat. From there, users posted that same photograph on Twitter. From there, various websites — Time, Yahoo, several Vox Media websites, the Boston Globe, Gannet, and Breitbart — embedded that tweet into their articles. Even though Twitter was the company hosting the image on their servers, Goldman sued those online publications for copyright infringement, since the articles featured the tweet and showed the picture in-line. Indeed, those media companies argued that they did not host the image on their own servers — they merely asked Twitter to have the image appear. 

In past precedent, media companies relied on the so-called "server rule," which meant that web publishers were free to link to full-sized images protected by copyright, so long as the images are stored on another company's servers. This rule has existed for approximately a decade and was the backbone for the increasingly popular practice of media companies embedding links within their articles. 

judge Forrest, however, is seemingly not a fan of the current interpretation of the "server test." She held that a distinction exists between a search engine — think Google or Duck Duck Go — and a news site. In Judge Forrest's view, the user of a search engine is an active participant in searching for an image, while a viewer of the news site is more passive and merely receives pre-arranged content. Indeed, she noted that "Google ... provide[s] a service whereby the user navigate[s] from webpage to webpage," while a blog has full-color images awaiting the user regardless of whether the user is searching for that particular content. This, Judge Forrest believes, violated Goldman's exclusive right to display his copyrighted work.

Through this new interpretation, Judge Forrest held that the media companies in question were liable to Goldman for copyright infringement. What this means is that photographers may now have a stronger legal case against websites that embed their copyrighted works into articles without permission.  That is, assuming this ruling isn't overturned on appeal.

If you are an author or artist in need of help obtaining a federal copyright registration or enforcing your copyrights, you can contact the professional attorneys at Law Offices of John D. Gugliotta, P.E., Esq., LPA. Our registered attorneys can help you secure federal copyright registration! Contact us today here, or call us at (888) 298-8580.

The Law Offices of John D. Gugliotta, P.E., Esq., LPA publishes this blog for educational purposes only, not to provide specific legal advice. By using this blog site you indicate that you understand there is no attorney-client relationship between you and the Law Offices of John D. Gugliotta, P.E., Esq., LPA. This blog should not be used as a substitute for obtaining legal advice from a licensed attorney. In addition, statements made on this blog represent the viewpoints of the individual authors, and do not necessarily reflect the views of Law Offices of John D. Gugliotta, P.E., Esq., LPA or any of our clients.

A Small Claims Copyright Tribunal — One Small Step for Art, One Giant Step for Artists?

Let’s pretend for a little bit. C’mon, bear with me here. Imagine that you — yes, you! — are an aspiring artist. Maybe you craft in wood. Maybe you write novels or poems. Perhaps you take stunning photographs. If you want to spice things up, imagine that you are a high-energy drummer in an up and coming rock band. One day, as you walk down the street, you see your photos or an excerpt from your book, or hear your latest single — whatever — in a storefront. It could be exciting, right? “Hey! I’m finally making it!” But what if you never sold your work to that store owner, or anybody else, in the first place? If you’re not making money off your art… who is?

In theory, hypothetical-you could sue the store owner for copyright infringement. And yet… if independent creators are, as the stereotype goes, truly “starving artists,” then the soaring costs of litigation will almost certainly act as a nuclear-level deterrent, ensuring that independent artists and creators who victims of piracy remain victims of piracy. This has the consequence of making it effectively impossible for authors, writers, and artists to protect their livelihoods. In turn, this may dissuade the most creative among us from pursuing their vision.

In a 2015 survey, The American Intellectual Property Association found that, on average, the cost of a single copyright litigation case with less than one million dollars in damages was $270,000. It’s hard to imagine any but the most successful artists having the kind of financing available for even small-claims copyright infringement litigation.

Congress, in a surprising move, has decided to take note and actually do something about it. House Resolution 3945 — the Copyright Alternative in Small-Claims Enforcement Act of 2017 (CASE Act, for short) — seeks to provide a cost-efficient avenue for independent and up-and-coming artists to protect their creations from infringement.

The CASE Act, if made into law, would establish a series of tribunals — called the Copyright Claims Board or “CCB” for short — made up of experts in copyright law. These expert judges would review infringement claims without incurring the astronomical costs of full-on copyright litigation.

There are three major aspect of note with regard to the CCB: (1) issues of jurisdiction and due process; (2) the limitation of damages; and, (3) the existence of an opt-out system.

Jurisdiction and Due Process

Critics of the bill complain that the CCB circumvents due process by allowing an alternative to the federal courts — which currently have exclusive jurisdiction over copyright infringement claims. Indeed, the CCB would be a subsidiary of the Copyright Office, completely independent from the judiciary. Further, the judges would be appointed by the Librarian of Congress, and could not be removed based on the “substantive result of any individual determined reached by the” CCB. Federal courts would still not have jurisdiction on appeal, either; instead, decisions of the CCB could only be appealed to the Register of Copyrights. Only in instances of “fraud, corruption, misrepresentation, or other misconduct”, or when a party failed to appear with an excusable reason, or when the CCB has “exceeded its authority” could the decision of the tribunal be removed to federal court. Importantly, removal to federal court is not available when the CCB errs in interpreting the law.

However, the CASE Act seeks to remedy this, built-in, by requiring both the plaintiff and the defendants to consent to the CCB’s jurisdiction. Thus, if one is a defendant in a copyright infringement case they must agree to the tribunal system for it to have jurisdiction; if the defendant does not consent to its jurisdiction, then federal district courts retain their jurisdiction over the claim. It should also be taken into account, however, that, from a practical standpoint, the astronomical expenses of copyright litigation act as a sort of de facto hurdle in preventing due process.

Limitation of Damages

Under the CASE Act, the CCB’s jurisdiction is limited to cases in which damages up to $30,000 are in play. In other words, the CCB could only award a copyright holder up to $30,000.00 — any claim for a larger amount would still be within the federal circuit’s sole jurisdiction. Small claims courts are not a new idea; indeed, small claims divisions exist in the judicial branch of all 50 states. On average, these small claims divisions have a limitation of damages of approximately $6,000.

The CCB, on the other hand, could levy damages five times more than the average small claims court. This is, in part, because the CCB would not be limited to providing so-called “actual damages,” but could also assign statutory damages under 17 U.S.C. § 504. Statutory damages are available in certain circumstances to punish infringers even when the copyright in question is not wildly profitable.

Thus, the CCB is ultimately limited to awarding $15,00 in damages per infringement, with up to $30,000 in damages total. The bill’s critics take issue with the fact that the CCB’s damage limitation is more than double of the damages available in the small claims courts of 49 states. However, these critics seemingly ignore the reality that copyright infringement may not result in much actual damage, especially for smaller artists, and that statutory damages are available in copyright cases for the deterrence effect. Further, critics seemingly ignore that the $30,000.00 limit on damages — even statutory damages — is far less than the $150,000.00 in statutory damages available under Title 17 of the United States code for willful infringement.

The Opt-Out System

As mentioned above, the CCB would be an “opt-out” tribunal. This means that, upon being served a notice of the suit, a Defendant will have the opportunity to deny the CCB’s jurisdiction, instead having the federal circuit determine the case. However, a defendant who fails to respond will automatically be subjected to the CCB’s jurisdiction. This could pose problems by creating what could be a “default judgement farm system,” so to speak. If copyright holders know that defendants are not likely to appear, they may be inclined to “farm” complaints against defendants in front of the CCB and then achieve a default judgment — all outside of the scope of the judicial process and, indeed, circumventing the judicial process as we have known it.

Conclusion

It may be that the CASE Act is fundamentally flawed and not the proper answer to the very real issues of a de facto lack of availability for independent copyright holders to enforce their copyrights. However, it is interesting legislation which highlights areas in which enforcing one’s copyright is fundamentally broken in 2018. Clearly, something — whether it be the CASE Act or a derivative of the CASE Act — should change to provide for easier access to small claims copyright enforcement legislation.

If you are an author or artist in need of help obtaining a federal copyright registration or enforcing your copyrights, you can contact the professional attorneys at Law Offices of John D. Gugliotta, P.E., Esq., LPA. Our registered attorneys can help you secure federal copyright registration! Contact us today here, or call us at (888) 298-8580.

The Law Offices of John D. Gugliotta, P.E., Esq., LPA publishes this blog for educational purposes only, not to provide specific legal advice. By using this blog site you indicate that you understand there is no attorney-client relationship between you and the Law Offices of John D. Gugliotta, P.E., Esq., LPA. This blog should not be used as a substitute for obtaining legal advice from a licensed attorney. In addition, statements made on this blog represent the viewpoints of the individual authors, and do not necessarily reflect the views of Law Offices of John D. Gugliotta, P.E., Esq., LPA or any of our clients.