Franklin Graves

On Thursday, final judgments were issued in a pair of copyright infringement cases that arose from a now infamous 2014/2015 project New Portraits, where appropriations artist Richard Prince displayed Instagram photos and user comments as a purported commentary on social media and art. The two nearly identical final judgments were entered in favor of the photographer plaintiffs’ claims that Prince and the exhibiting galleries willfully infringed on their photographs, and the court dismissed all the defenses raised – including the fair use defense – with prejudice.

On December 11, the Review Board of the U.S. Copyright Office (USCO) released a letter affirming the USCO’s refusal to register a work created with the use of artificial intelligence (AI) software. The decision to affirm the refusal marks the fourth time a registrant has been documented as being denied the ability to obtain a copyright registration over the output of an AI system following requests for reconsideration.

On Friday, Judge Beryl Howell issued an opinion in Dr. Stephen Thaler’s challenge against the U.S. Copyright Office (USCO) over the denial of his application for a work generated entirely using generative artificial intelligence (AI) technology. The opinion supports the USCO’s refusal to register a work in which the claimant disclosed in the application that the image was the result of an AI system, called The Creativity Machine. The case is Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564) (June 2, 2022).

The past year has provided decades’ worth of developments across law and policy in the areas of artificial intelligence (AI) and machine learning (ML) technologies. If 2022 was the breakthrough year for accessible AI, then 2023 can so far be deemed as the first year of likely many more to come in the era of an AI inquisition. “After years of somewhat academic discourse,” reflects Dr. Ryan Abbott, “AI and copyright law have finally burst into the public consciousness—from contributing to the writer’s strike to a wave of high-profile cases alleging copyright infringement from machine learning to global public hearings on the protectability of AI-generated works.” Both the U.S. Copyright Office (USCO) and the U.S. Patent and Trademark Office (USPTO) are in active litigation over the eligibility of generative AI outputs for statutory protection. Additionally, both offices have held numerous webinars and listening sessions and conducted other methods of collecting feedback from the public as they work through policy considerations surrounding AI.

On Wednesday, June 28, the United States Copyright Office (USCO) hosted a virtual event exploring guidance for registration of works containing generative artificial intelligence (AI) content. The hour-long event included a recap of the USCO’s previously released policy guidance and the Zarya of the Dawn partial registration refusal, staff walking through numerous examples of how AI technologies are being used, and a Q&A session consisting of pre-planned and live audience discussion.