Monkey-ing Around: How One Monkey Shaped Copyright Law for Artificial Intelligence
April 2023 | Annie Vong (Editor-in-Chief)
“Artificial Intelligence (AI) has transcended its traditional role as a mere problem-solving tool, as it now produces stunning artworks, insightful essays, and soul-stirring music that rival those created by human beings.” [1] The previous sentence was generated by an artificial intelligence bot, ChatGPT. Artificial intelligence has been top of mind since the rise of AI bots like ChatGPT. It has previously been used to screen job applications and make video recommendations on sites like YouTube, but now, AI can generate essays, art, music, and more with a simple prompt, bringing up questions over ownership rights. What is the legal future of AI? Can AI have intellectual property rights over the art it creates? Can humans who use AI as a tool have copyright over the art they used AI to create?
Firstly, to define intellectual property (IP), it gives ownership to creative works and processes and has three main types: copyright, trademark, and patents. Copyright law started with The Copyright Act of 1976, [2] which gave IP rights to artistic, literary, or intellectually-created works. Copyright differs from patents – which gives IP rights to technical inventions – and trademark – which gives IP rights to words, phrases, or designs. [3] Regarding copyright, the U.S. is one of many countries to adopt copyright law with the Berne Convention, which states that as a work of art is written, documented, or recorded physically, the creator of that work has automatic copyright, meaning that creators do not need to file any official forms to have copyright. [4]
Part One: Can Artificial Intelligence have Copyright?
The precedent for whether AI can have copyright emerges from Naruto v. David Slater et al, a case involving a monkey taking a selfie in Sulawesi, Indonesia. [5] Wildlife photographer, David Slater, left his camera unattended near the black macaque exhibit and a monkey named ‘Naruto’ took a selfie with his camera. Slater later published these photos in a photobook, claiming copyright only for himself. [6] People for the Ethical Treatment of Animals (PETA), an animal rights organization, [7] sued on Naruto’s behalf for copyright infringement, arguing that because the monkey took the selfie by itself, Naruto is the creator of the work; therefore, Naruto has copyright due to the terms from the Berne Convention. [8] (Using the courts to secure rights for animals is not new; the courts have been used in an attempt to secure bodily autonomy rights for an elephant in the Bronx Zoo.)[9] Additionally, the Copyright Act defines five rights that copyright holders have, but does not explicitly define what authorship entails. PETA argued that the term “authorship” in the Copyright Act is up to interpretation. [10] For PETA, expansion of copyright ownership to animals can set precedent for animals to have other rights as well. And so, the courts had to decide the following issue at hand: Who owns copyright? Can a non-human creator own copyright?
The defendant, Slater, argued that he owned the camera equipment and that he created the situation that resulted in the picture being taken. For example, he checked the angle of the shot, set up the equipment, adjusted exposure, etc. He also argued that he has standing whereas Naruto did not. Who the court decides to give copyright to significantly impacts Slater's photography business, however, Naruto is not financially impacted at all if copyright is granted or not. The court ruled against PETA and Naruto citing their lack of standing. The district court reasoned that because the Copyright Act does not extend copyright to animals explicitly, the law does not apply to Naruto and that both PETA and Naruto were legal strangers to the case. [11] If a human were to file a copyright infringement suit on behalf of AI, that suit would likely also be dismissed as well on the same grounds. However, unlike Naruto, if AI were to ever represent itself in court, the court may find that it is not a legal stranger to the case and has standing.
After PETA and Naruto’s loss at the district court level, PETA appealed to the Ninth Circuit Court of Appeals, which affirmed the district court’s decision and emphasized that PETA and Naruto did not have standing to file for copyright infringement. They interpreted that the authorship under the Copyright Act specifically referred to “persons” or “human beings” and that Naruto did not fit under either category. [12]
The emphasis on “persons'' holding copyright brings up the philosophical question of what counts as a “person.” Must a person have consciousness? Intelligence? Must a person be of the human race? At what point can AI cross that threshold into being considered a person? Legally, the courts have extended the definition of “persons'' to include non-human entities before. For example, in common law, courts have ruled that the Catholic Church has the right to sell property. [13] Furthermore, in Burwell v. Hobby Lobby (2014), the Supreme Court has granted corporations personhood and ruled that they can refuse to follow a federal healthcare mandate covering birth control if that mandate violated their religious exercises. [14] And, in Citizens United v. FEC (2012), the Supreme Court ruled that corporations have the right to freedom of speech via campaign contributions. [15] However, it can be argued that these groups (the Catholic Church, Hobby Lobby, and Citizens United) are collections of human members, and that AI is not, making them more different than similar to these groups that have gained rights through the courts. As rights for corporations have expanded, one question remains unexplored — can corporations who use AI as a tool to generate works of art have copyright? Can humans who use AI as a tool to make music have copyright?
Part Two: Can humans who use AI as a tool have copyright over the art they create?
In April, a social media user named, “Ghostwriter977” posted a song that claimed to be crafted using AI. [16] The song, “Heart on My Sleeve,” used the likeness of two pop stars, Drake and The Weeknd. Universal Music Group (UMG), a corporation that owns the music label that Drake and The Weeknd have signed under, have filed a copyright claim taking down all posts containing this song. [17] UMG put out a response, “the training of generative AI using our artists’ music represents both a breach of our agreements and a violation of copyright law.” [18] Does UMG have grounds to copyright this song, even though it was not produced by Drake and The Weeknd themselves? To understand this, consider a scenario where AI was not used at all. Under the Copyright Act, use of copyright material is permitted in some cases such as in training, education, commentary, parody, etc. [19] If it is used (for example, if it is used in a parody or commentary) there must be some modification, transformation, or addition to the copyrighted material in order for it to constitute as fair use. It cannot be an exact copy of the material.
There exists an argument that Ghostwriter977 did not use any existing copyright material (or any other published songs) in the song itself, so it constitutes as a fair use of copyrighted material. But, on the other hand, there also exists an argument that Ghostwriter977 was using published songs (copyrighted material) to train the AI and used Drake and The Weeknd’s likeness to make a profit from the song. It can be argued that even if Ghostwriter977 used copyrighted material to train the AI, the song is transformative enough to count as fair use. It is still unknown whether courts will accept the argument that using AI as a tool in creating works of art is enough for the human creator to have copyright.
All of these cases pertaining to AI and intellectual property rights pose giant questions in copyright law. Drawing from Naruto, courts would most likely decide against artificial intelligence having copyright, but issues with copyright and AI move faster than the creation of legislation, and courts are forced to interpret law where law doesn’t exist, which can lead to a vulnerability in copyright law where it only takes one case to change the future of copyright for non-human entities forever.
Sources
“Introducing ChatGPT.” OpenAI
United States Congress. The Copyright Act of 1976. 94th Congress, Introduced
in Senate 15 January 1975. Pub. L. 94–553
“Trademark, patent, or copyright.” United States Patent and Trademark Office
“Berne Convention for the Protection of Literary and Artistic Works” World Intellectual Property
Organization
Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
O’Donell, Nicholas. “Is the ‘monkey selfie’ case making a monkey out of the law?”Apollo
Magazine. July 28, 2018
“About PETA: Mission Statement.” PETA
Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
Lissett, Jenifer. “The Legal Rights of the Elephant in the Room.” UNLV Undergraduate Law
Review. February 2022
“UPDATE: ‘Monkey Selfie’ Case Brings Animal Rights Into Focus.” PETA, January 6, 2016
Naruto v. Slater, No. 16-15469 (9th Cir. 2018)
Ibid.
Totenberg, Nina. “When Did Companies Become People? Excavating The Legal Evolution.”
National Public Radio. July 28, 2014
Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014)
Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010)
Pahwa, Nitish. “How Two Music Legends Found Themselves at Some Anonymous TikTokker’s
Mercy.” Slate. April 17, 2023
Ibid.
Ibid.
“U.S. Copyright Office Fair Use Index.” U.S. Copyright Office. February, 2023