Dan L. Burk, Thirty-Six Views of Copyright Authorship, by Jackson Pollock, 58 Houston Law Review 263 (2020). The late Dan Burk was known for his intellectual tenacity, his personal warmth, and his shrewd sense of humor. All three are on display in this piece. It tackles the question of who (if anyone) should own the copyright to computer-generated works. (This piece is formally inventive. It works here, but this kind of unconventional structure is easy to get wrong. Do not try this at home, unless you are very sure you know what you’re doing.)
Questions:
What is a computer-generated work?
How is a work created using generative AI different, if at all, from a work using analog tools like paintbrushes? From a work generated using digital tools like Adobe Illustrator?
Do the technical details matter in deciding whether a computer-generated work is copyrightable? Or is it irrelevant how the computer works, because the only important fact is that it is not a human?
Here is a proposal: computer-generated works are copyrightable, and the copyright is owned by whoever first publishes them. Is this consistent with copyright theory? Would it lead to good results in the real world? What would Burk say?
This article was written shortly before the recent explosion of generative AI. How well does it hold up?
Additional Resources:
Jane Ginsburg and Luke Ali Budiarjo, Authors and Machines, 34 Berkeley Technology Law Journal 343 (2019). This is a long article, but careful and thorough. It covers the same ground as Burk, but more methodically and in much greater depth.
Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works, 47 University of Pittsburgh Law Review 1185 (1986). It should be no surprise that Samuelson addressed this question early, or that her work holds up well.
James Grimmelmann, There’s No Such Thing as a Computer-Authored Work – And It’s a Good Thing, Too, 39 Columbia Journal of Law and the Arts 403 (2016). I argued that “the computer is the author” is a bad answer to the hard and case-specific questions that computer-assisted authorship raises. I still think so, but not as confidently as I did then.
Bruce Boyden, Emergent Works, 39 Columbia Journal of Law and the Arts 377 (2016). This is the article that made me understand why AI authorship is an intrinsically hard question.
Katherine Lee, A. Feder Cooper, and James Grimmelmann, Talkin’ ‘Bout AI Generation: Copyright and the Generative-AI Supply Chain, Journal of the Copyright Society of the USA (forthcoming). A more recent take. The computer-authorship material is in Part II.A, but there is also a detailed description of how modern generative-AI systems work in Part I, which you may find useful.
Carys Craig and Ian Kerr, The Death of the AI Author, 52 Ottawa Law Review 33 (2021). A very different take on AI authorship, one that focuses on the social role of “author” rather than the mental and physical processes that results in a work.