Generative AI & Copyright: Pt 3: % human intervention required?
A rule named “Works Containing Material Generated by Artificial Intelligence” issued in March of 2023 by the USCO (U.S. Copyright Office) included this statement regarding technology:
“Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship. … what matters is the extent to which the human had creative control over the work's expression and actually formed the traditional elements of authorship.”
Included in that same rule:
“The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. This is necessarily a case-by-case inquiry”
Hmm... There are no readily measurable metrics in either of those statements. So, let’s try to develop some by using an image I created for this post as a case study.
The 3-part, initial concept as written out by me (think of it as a human brain prompt) goes like this: “the letters A. and I. will be placed like an island in a large body of water under a sky that is signaling a coming storm with the letter R floating away from it.”
The letters, water reflection, layout and final color adjustments were created by me using Photoshop. The sky was created by Adobe’s Firefly A.I.
Potential quantitative measurement metrics could include the number of pixels generated by A.I (70%), The proportion of labor between Photoshop work and writing prompts (20 to 1), or the percent chance that it is A.I. as measured by detection apps (14%)
But I am wrong to assume that any of that matters to the USCO, because according to their rules, The Copyright Act offers protection based solely on whether, through mainly human intervention, the work:
- “is original to the author … but “originality” does not require “novelty”.
- Contains “some minimal degree of creativity … Even a “slight amount”.
Perhaps we can use Google’s reverse image search to find images that are so similar that they could render my image unoriginal, and not creative. Unsurprisingly, this search did not result in any such thing for my image, nor will it for any reverse image search for any A.I. generated image that does not have specific prompts to create in the style of a known copy right-able image or brand.
So, it really comes down to a human at the USCO levying judgement on the degree to which a human creator’s intervention resulted in the originality and creativity of an image.
Two measurement metrics for that may be:
Percent of the original concept for the image produced by me (100%)
Percent of the imagery produced by A.I (about 1/3... the sky signaling a coming storm).
Percent of aesthetic impact of the imagery produced by A.I. (about 1/3... again, the sky signaling a coming storm)
Is that enough for the USCO to judge human intervention as a significant contribution towards originality and creativity? They are signaling that the answer could be yes, as they are asking for creators to include their process details in their applications.
Sources:
The USCO rule regarding the use of A.I.: https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence
Link to the USCO copyright criteria: Chapter 300 section 308:8 https://www.copyright.gov/comp3/chap300/ch300-copyrightable-authorship.pdf
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