visual art Archives

Almost Paradise? No Authorship for AI “Creativity Machine”

by Kavya Rallabhandi | Aug 31, 2023 | Copyrights

The US District Court for the District of Columbia agreed with the US Copyright Office’s denial of a copyright application that sought to register visual art generated by artificial intelligence (AI) because US copyright law only protects works of human creation. Thaler v. Perlmutter, Case No. CV 22-1564 (D.D.C. Aug. 18, 2023) (Howell, J.)

The Copyright Act of 1976 provides immediate copyright protection to any work of authorship fixed in any tangible medium of expression. Applicants may submit their works to the Copyright Office for registration, during which works are reviewed for eligibility for copyright protection. the Copyright Office then registers eligible works, affording the registration owner certain legal benefits and presumptions.

Stephen Thaler, the owner of an AI computer system called the “Creativity Machine,” claimed that his AI independently generated the below visual art entitled “A Recent Entrance to Paradise.”

Thaler sought to register the work with the Copyright Office. The copyright application described the art as “autonomously created by a computer algorithm running on a machine,” identified the Creativity Machine as the author and listed Thaler as the copyright claimant under the work-for-hire doctrine. The Copyright Office denied Thaler’s application because the work lacked human authorship, which is an essential element of a valid US copyright. Thaler twice requested reconsideration of the copyright application, and the Copyright Office twice refused to register the work because of the human authorship requirement. Thaler timely appealed the Copyright Office’s denial to the District Court for the District of Columbia, and both parties moved for summary judgment.

Under the authority of the Administrative Procedure Act, the district court reviewed the Copyright Office’s final agency action through the arbitrary and capricious standard of review (5 U.S.C. § 704). The district court first analyzed whether the AI computer system could own the copyright, then determined whether Thaler was a proper claimant under the work-for-hire doctrine. The district court held that the Copyright Office did not err in denying Thaler’s copyright registration application because US copyright law only protects works of human—not machine—creation. Although copyright law was designed to adapt with the times, the district court stated that there is an underlying and consistent understanding that human creativity is the driving force of copyrightability. While the tools humans use to create copyrightable works (fixed in tangible mediums) are ever evolving and range from pencils to computers, human authorship is a bedrock requirement to copyrightability such that the tools themselves cannot be listed as copyright authors. The district court further held that the plain text of the 1976 Copyright Act requires human authorship since it states that the originator of the copyrightable work must have the capacity for intellectual, creative or artistic labor—a standard that AI has yet to meet. Because AI computers cannot be copyright authors, the district court did not address the work-for-hire [...]

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Cover-Up Isn’t Covered Under VARA

by Vincent Li, PhD | Aug 31, 2023 | Copyrights

The US Court of Appeals for the Second Circuit affirmed that the Visual Artists Rights Act of 1990 (VARA) does not prohibit covering an artist’s mural where there is no damage to the mural. Samuel Kerson v. Vermont Law School, Inc., Case No. 21-2904 (2d. Cir. Aug. 18, 2023) (Livingston, Cabranes, Kovner, JJ.)

In 1993, Samuel Kerson and Vermont Law School entered into a written agreement for Kerson to paint two murals on the walls of the law school’s community center. The completed murals were publicly viewable and depicted several distinct scenes spanning the history of US slavery, from the capture of Africans in their homelands through the abolitionist movement.

Because of complaints from community members regarding how the murals presented Black people, the law school considered options for the murals’ removal. The school decided to conceal the murals behind a barrier of fabric-cushioned acoustic panels. The panels were constructed such that they were suspended approximately two inches away from the murals’ surface and did not touch the murals.

Kerson filed suit seeking to enjoin the installation of the acoustic panels on the theory that they amounted to a violation of his rights under VARA. Under the relevant part of VARA, the author of a “work of visual art” “shall have the right”:

(A) to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and

(B) to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.

17 U.S.C. §§ 106A(a)(3)(A)-(B).

In the district court, Kerson argued that blocking the public from viewing his work of art would amount to the “destruction” or “intentional distortion, mutilation, or other modification” of the murals. The district court disagreed and granted summary judgment in favor of the law school. Kerson appealed.

Kerson argued that permanently concealing the murals with a solid barrier of acoustic panels modified and thus “destroy[ed]” his work. The Second Circuit agreed with the district court that covering a work of art did not amount to “destruction” under VARA. The Court explained that Kerson’s argument did not comport to the conventional understanding of the word “destruction” under the plain meaning of the statute. The acoustic panels were designed to not touch the murals, let alone destroy them.

The Second Circuit also rejected Kerson’s argument that covering a work of art amounts to “modification.” Under VARA, “modification” would entail a change to the work of art that alters some portion of it without radically transforming the whole. For example, an additional brush stroke, erasure of content or the reorganization of a movable component would be a modification of a work of art. Modifications do not include concealing the entire work behind a solid barrier.

The Second Circuit also rejected Kerson’s argument that concealing the murals was [...]

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Street Art Street Smarts: Second Circuit Applies VARA, Affirms Moral Rights

by Sarah Bro | Mar 12, 2020 | Copyrights

The US Court of Appeals for the Second Circuit affirmed that plaintiffs-appellees’ temporary artwork had achieved appropriate stature to be protected by the rarely invoked Visual Artists Rights Act of 1990 (VARA), and that an award of statutory damages was warranted for defendants-appellants’ willful unlawful actions. Jonathan Cohen, et al. v. G&M Realty L.P., et al., Case Nos. 18-498, -538 (2nd Cir. Feb. 20, 2020) (Parker, J).

VARA established a structure of moral rights that gives the author of a work of visual art the right to “prevent any destruction of a work of recognized stature,” and provides that “any intentional or grossly negligent destruction of that work is a violation” of VARA. The act also contains specific language prohibiting the removal or destruction of artwork incorporated into a building absent certain written waivers or notice provisions, which are detailed in the statute.

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