Amberfi engaged the services of Lance Koonce of a leading Web3 intellectual law firm, Klaris, to answer questions from members of the community.
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Q: I heard the US Copyright Office ruled that AI-generated art can’t be copyrighted. So what are some of the intellectual property considerations that come into play when you’re minting AI-generated art or photography?
A: First of all, I would say that my hope is that there’s going to be more nuance in the law around AI-generated artwork in the coming years. The Copyright Office has taken a very firm line that they won’t register something that is generated by a machine because the copyrights it grants only protect the product of the human mind. That said, all of these algorithms have been trained and created by humans — trained using information and material that comes from humans. So I wouldn’t close the book on this position changing at some point.
The most famous case that addressed one aspect of this issue in the past 10 years was what they call the “monkey selfie case” — a rather unusual case in which a macaque monkey took a digital camera that had been set up and took selfies. Then PETA, the animal rights organization, tried to make an argument that the content should belong to the macaque. In the end, the courts ruled that the parties to the case had no standing.
I think what we’re going see in the future is people claiming that the products of AI should belong either to the party who made the information and used AI to create something new, or to the owners of the algorithm itself that generated that created piece in the first place.
So, there’s really still a question of who owns what. But I know your point was really meant to address AI-generated content that’s used to create NFTs. I think it’s all the same. Right now, if you take a piece of content, and it’s generative, and it’s created by AI, the best thing you can do is to start with a piece of art that you own every bit of. Then if you use AI to alter it in some way, then you can still register, preserve, and protect your original piece of content under copyright law.
This way you’re in a better position to argue later, if someone were to infringe a version of that you’ve created using AI, that you’ve gotten some protection for it. If you did try right now to go to the Copyright Office and register just the AI-generated content, I think they’d tell you just that.
Editor’s note: This is another in a series about NFTs and the law. Check out our blog for additional articles on the subject that will appear each week. Listen to our podcast episode with Lance Koonce on these topics here.
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