In a world where AI art is cheap and easy to generate, do we still need copyright?

To say that AI-generated art is controversial would be something of an understatement. The appearance last year of free tools like Stable Diffusion has not just thrown the world of art into turmoil, it has raised profound questions about the nature of human creativity. AI art also involves thorny issues of copyright that have piqued the interest of lawyers, who sense an opportunity to sue tech companies for large sums.

Most AI art programs draw on billions of existing images to formulate internal rules about shapes, colours and styles. Many, perhaps most, of those images will be under copyright. There are already several court cases that will help to decide the legality of this approach, including an important new one in the US brought by Getty Images against Stability AI, the company behind Stable Diffusion. But whatever the outcomes of these, it seems likely that AI-generated art will continue to exist in some form, given its huge potential, and the interest it has generated among the business world and general public.

Similarly, the copyright status of the end-result of using AI to produce new images is ill-defined. In February 2022, the US copyright Office ruled that an AI can’t copyright its art because it didn’t include an element of “human authorship”. However, more recently, an artist has received US copyright registration on a graphic novel that features AI-generated artwork.

In this context, it is sometimes forgotten that copyright for the fine arts is relatively new. Modern copyright dates from the 1710 Statute of Anne, which applied to “books and other writings”. Although the special class of engravings received protection in 1735, it was not until 1862 that the fine arts were eligible for copyright in the UK; for the US, it was only in 1870.

Significantly, one category of copyrightable subject matter explicitly mentioned in the US law was “chromo” – colour lithographs. Copyright became an issue for art once it was possible to make large numbers of high-quality colour facsimiles of original works. Before such technology was cheaply available, it was only through artists’ copies of their own works, plus often highly popular engravings, that a painting or drawing could be shared more widely.

Since the nineteenth century, copyright has been strengthened in numerous ways. For example the term of copyright is now typically for the life of the creator plus 70 years. At the same time, technologies for making copies have progressed greatly. When analogue material is converted into digital form, it is possible to make perfect copies of these files for vanishingly small cost. The rise of the Internet allows any number of copies to be sent around the world, again for effectively no cost.

This has led to a fundamental clash between copyright and the Internet. Where for 300 years the former has revolved around preventing unauthorized copies being made, the latter technology is based on the constant generation and free flow of copies of digital files, and cannot function without them.

Although nobody ever talks about that deep mismatch, in legal terms the situation is clear: everybody online is breaking copyright law hundreds, perhaps thousands, of times a day. Back in 2007, John Tehranian, a professor at Southwestern Law School in Los Angeles, calculated that typical Internet users would be liable for $4.544 billion in potential damages each year as a result of the unavoidable copyright infringements that they committed online. A law that is routinely ignored by billions of people online every day is clearly a bad law.

Unfortunately, the response of the copyright world to this problem has been to call for more stringent laws in the forlorn hope that this will somehow stop people making digital copies. The most recent example of this wishful thinking is the EU’s Copyright Directive. Of particular relevance to the world of visual arts is a requirement that major online sites must operate a filter to prevent unauthorized copies of copyright material being uploaded by users.

The volume of uploads today is so great – in 2020, 500 hours of video were uploaded to YouTube every minute – that such filters will need to be automated. However, it is impossible to encapsulate the complexity of copyright law in an algorithm. Even experts struggle to distinguish between copyright infringement and the transformative re-interpretation of an existing work, as the current case involving Andy Warhol’s use of a photograph for a series of images of the musician Prince demonstrates. Inevitably, the EU’s new automated filters will err on the side of caution, and over-block material. As a result, perfectly legal images that build on the work of others are likely to be blocked, with knock-on harm for artistic creativity and freedom of expression.

If more stringent copyright laws are not only doomed to fail – policing the entire Internet is not possible – but produce serious collateral damage to basic human rights, perhaps the resolution of the incompatibility between copyright and the Internet is to row back or even abolish the former. That may be bold, but it wouldn’t be a huge problem for the fine arts world, where the core artistic output is often a physical object of some kind. Copyright is largely irrelevant for such analogue items, since they cannot be copied in any meaningful way. Although digital versions can often be made, they are not substitutes for the original.

There are, of course, many born-digital works of art, but it is precisely this class of creativity that is now under threat from AI-generated art. In the future, it is likely that many types of digital images produced today by humans will be replaced by the output of AI systems, particularly in a commercial setting, where economics, not aesthetics, are paramount.

Artists may argue that such algorithmic work is inferior to the human kind. That may be true at present, but such AI systems have already made huge advances in just a few years, as recent developments have shown. In the not-too-distant future, their work is likely to be indistinguishable from that of human practitioners for most everyday uses, not just in terms of quality and creativity, but even to the point of being able to mimic any artist’s style without copying any element directly.

However, there is a different approach to art that AI generated works will be unable to match until AI itself possesses deeply-human attributes such as empathy, and is able to nurture social relationships. It’s exemplified by the artist Anne Rea. Her approach is based on establishing a rapport with people who commission and pay her in advance. She is quoted in Art Business News as saying:

I’d much rather cultivate a relationship with a patron. Get paid up front. Not allow any discounting. Keep all of the money. And through that relationship, get repeat purchases and referrals to their friends and family. That’s a smarter way to go.

Rea’s success harks back to an older model for supporting artists through patronage. Significantly, a large proportion of the world’s greatest artistic masterpieces come from this time, before copyright was invented. As AI art begins to encroach on digital creativity, and copyright threatens to shut down free expression online, perhaps it’s time to explore this older approach that is immune to both. More on this idea can be found in Walled Culture the book, available as a free ebook or in analogue form from leading online bookshops.

Featured image created with Stable Diffusion.

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