Automated creativity (and a new case to follow)

Yeah, it’s more of this. If you’re sick of hearing about AI and/or machine learning, then you may want to skip this post, but I’ll probably be writing about the subject every so often as the technology develops (and as usual, all the legal stuff here may only apply in the US.)

There have been a shocking number of developments since I wrote on the subject late last year. A few lawsuits have been filed against image and code generator owners and operators, perhaps the most prominent being Andersen v. Stability AI Ltd. now pending in federal court in California. The grounds for this class-action suit can be found on the plaintiff firm’s website, where they show if nothing else that they have a good sense for clean and simple webpage design.

The case is still in its very first stages. None of the defendants have filed an answer yet, and it’s possible they’ll be filing motions to dismiss first. Such a motion should be filed in place of an answer if the defendant has an argument that the plaintiffs’ initial complaint is technically faulty somehow. There are various grounds to base a motion to dismiss on, but the one I might expect here is failure to state a claim for which relief can be granted (i.e. “you’re not actually claiming I’m doing anything illegal/infringing on your rights.”) I doubt very much that the court would grant such a motion given how novel this case is, but it might still be worth a try. The fact that Stability AI has announced artists can opt out of having their work used to train Stable Diffusion 3 may make a difference in that decision, though I can’t say how much of a practical effect it will have either on this case or on the operation of the next Stable Diffusion model.

The complaint isn’t airtight, nor can we expect it to be given how novel this case is. This isn’t Thaler v. Perlmutter: in that case, I argued that the US Copyright Office was on extremely solid ground in denying Dr. Thaler’s image generator copyright ownership over its images based on the human authorship requirement contained in the office’s interpretation of the Copyright Act. Andersen will instead raise the question of fair use, and specifically of transformative use. Have the companies behind Stable Diffusion, Midjourney, and whatever DeviantArt is using violated the legal rights of artists by scraping the internet for billions of images to train their programs on, or will the defense of transformative use act as a shield against further litigation?

I’m not going to pretend that I can possibly predict the ultimate outcome of Andersen. However, it is certain that fair use will be the primary defense in this case. I’ve already seen some people conflating the legal issues involved in this case and Thaler, which is understandable considering how much of a labyrinth the American system of legal precedence, statutes, and regulations can be. But keep in mind that the doctrine of transformative use, a subset of fair use, is only a defense to a charge of copyright infringement. If the court in Andersen were to find, for example, that the output of Stable Diffusion is transformative enough to not infringe on the rights of the artists whose works were used to train the system, it wouldn’t automatically follow that said AI-generated output is a copyrightable work in itself given the Copyright Office’s stance against granting protection to AI-generated works. The courts’ findings in Thaler and Andersen, together with other proposed and pending AI-related cases, may create a new framework of legal precedents to work from, though I wouldn’t hold your breath waiting through the years it will take for these cases to get through discovery, countless motion hearings, back-and-forth negotiations, and finally appeals.

I won’t go into transformative use in depth today. It seems pointless to do so this early in the case — I’d rather wait for those potential motions to dismiss, responses to said motions, and the court’s order, which may take a few months to come out depending on the deadlines. Like I said, don’t hold your breath.

But there’s still plenty to examine here, even in these early days. When I was digging around for more information about the Andersen complaint, I found this attempt at a takedown of the plaintiffs’ complaint by a group of “tech enthusiasts uninvolved in the case.” I disagree that plaintiffs’ lawsuit is frivolous, and I think there are some fairly disingenuous and even a few outrageous remarks on this page. However, this unnamed group of enthusiasts also raises some counterarguments to the Andersen plaintiffs’ allegations that are worth considering.

Setting aside all the technical analysis of how AI “art” is generated on the page, which I admit I don’t have the expertise to address, the most interesting point they raise (though not their strongest argument) is the lack of a bright line between the mere use of a tool in the creative process and the generation of an AI image as an act independent of the prompt-writer. I also believe that there isn’t a bright line here but more of a spectrum. This reminded me of something I’d seen a few days earlier, when I was watching an artist in a livestream using a lighting tool in Photoshop to “place” the sunlight source in the image. I’m sure there are painters who would consider that sacrilege, and the same goes for line-straightening and even maybe for working in easily editable layers. There may also be automated tools that can be applied to certain parts or aspects of human-created works that would be further towards the “AI end” of that spectrum.

This seems to be one of the AI proponents’ favorite defenses, and for good reason: there’s something to it. Rejecting AI tools in the creation of visual art, they say, is akin to rejecting the camera or digital art tools and methods, all of which also happened in their own times. Yet I still insist, at the risk of being called a Luddite (which they would definitely say I am anyway, so it hardly matters now) that this time, it is different. I’ll refer back to an argument I made in the context of Thaler, because it applies here as well. An artist who wields a tool still completely or substantially controls the end result; the tool only aids them in getting there.1 By contrast, a system like Stable Diffusion generates an image according to the user’s parameters, said image being substantially outside the user’s control until they start editing it.

The use of AI tools in editing or supplementing human-created art may sit in a gray area between these two points. We’ve already seen such cases, again sparking serious anger — see for example the Netflix-produced anime short Dog and Boy, with background art credited to “AI (+ human)”. And there’s already been a legal controversy over such mixed human/AI visual works in the denial of copyright registration for a comic with AI-generated elements.

Again, I won’t argue over the specifics of how Stable Diffusion or similar systems generate their images — I lack the necessary technical knowledge, and I’m sure that will be gotten into in great depth in the coming filings in Andersen, so I may as well let the people actually getting paid to do the work argue those points instead. But though I probably will address those issues later on, I’m not just approaching this matter as an attorney. From that legal perspective, I can be more dispassionate and can easily put myself in the defendants’ position.

But as an amateur writer, I admit I have a bias here and a personal stake in the outcomes of these cases, even if a small one. Today, if I felt like it, I might use NovelAI, ChatGPT, or a similar system to help me fill in a story with descriptive scenes. Even after editing, however, that part of the story wouldn’t be mine, and as far as I’m concerned, that lack of human authorship — my authorship — would taint the entire work. Maybe some writers don’t feel the same way and would say I just have a silly hangup, or that I’ll change my tune later on as times change and start to pass me by. They’re free to hold those opinions, and I’m free to hold mine. And if both the visual arts and literature end up congealing into a dull, stagnant mush as a result of reliance on “automated creativity” then kindly don’t talk to me about it, because I’ll be busy with my horrible, utterly mind-numbing legal work. I’d rather do that than try to put out my own painstaking writing where reliance on automation has become the standard.

And since this is also partly an anime review/analysis/etc. site, if you want my opinion on Dog and Boy, there it is. I certainly don’t agree with everything he says about anime, very far from it in fact, but Miyazaki was spot on in this case:

Before I’m done with this post, though, I have one warning for those who are not just excited about the advent of AI but are giddy over its replacing and “improving” on the work of human artists (or who insist there’s no risk of replacement, about which a little more in the endnotes.) Those who believe AI technology can be wielded only in ways that they like will probably discover uses of AI down the road — and perhaps not far down this road we’re on — that they don’t like or agree with, uses that may even damage human relationships and society itself.

Well then, if that happens, go ahead and close Pandora’s box pretending everything will be all right. Don’t think about the possible decay of social, family, and even potentially romantic bonds as AI expands into areas of life you might have thought would always be left to humans. At that point, only one thing is certain to me: you won’t have my help if the shit really hits the fan. Because I figure that if you’re going to support the wresting away from human hands of the one thing in life that makes me feel fulfilled, I may as well go ahead and escape reality even more fully when I have the time by drowning in some AI-powered fantasy where I live in a mansion staffed by catgirl maids and where I don’t have to resent every moment of a life I live purely out of obligation to others anyway. Is that acting out of hypocrisy or just sheer spite? No, neither: I call it being practical.2

Well, I got heated this time, but can you blame me? Maybe you can, and that’s what the comments section is for. If you think I’m an idiot, go ahead and say so, but at least you know you’ve come to expect something more than dry legal analysis from these posts (which has its place, just not on this site.) Until next time.


1 I apply the same argument in favor of the use of sampling in music, and for that matter the use of that light source tool.

2 Okay, I was pretty pissed when I wrote this part, and maybe I shouldn’t have left it in. But here’s what set me off: the glib attitude we so often see from the all-in AI enthusiasts. In the takedown of the Andersen plaintiffs’ complaint linked above, see the following, taken from the pro-AI tech group’s (since I have no other name to use) response to the bios of the three named plaintiffs. Their text follows in blockquotes:

I have genuine sympathy for the plaintiffs in this case. Not because “they’re having their art stolen” – they’re not – but because they’re akin to a whittler who refuses to get power tools when they hit the market, insisting on going on whittling and mad at the new technology that’s “taking our jobs!” When the one who is undercutting their job potential is themselves.

I’ve already argued against what I see as the above faulty comparison between AI image generators and digital art tools — the latter seem to me the proper analogy to power tools. More striking, however, is the writer’s condescending tone. I doubt just how genuine the sympathy is when it’s expressed in such a way. “Bless your heart” as they say down South — polite code for “what an idiot.” See also the writer’s assumption that artists aren’t having their art stolen. From a legal perspective, that one is for the court to decide when the defendants raise their transformative use defenses. And I won’t even get into the moral concept of theft in this context — that will likely take an actual philosopher to write an entire book about.

Jevon’s Paradox is real. Back when aluminum first came out, it was a precious metal – “silver from clay”. Napoleon retired his gold and silver tableware and replaced it with aluminum. The Washington Monument was capped with a tiny block of what was then the largest piece of aluminum in the world.[30] Yet, today – where aluminum is a commodity metal costing around $2/kg, rather than a small fortune – the total market is vastly larger than it was when it was a precious metal. Because it suddenly became affordable, sales surged, and that overcame the reduction in price.

AI art tools increase efficiency, yes. Contrary to myth, they rarely produce professional-quality outputs in one step, but combined into a workflow with a human artist they yield professional results in much less time than manual work. But that does not inherently mean a corresponding decrease in the size of the market, because as prices to complete projects drop due to the decreased time required, more people will pay for projects that they otherwise could not have afforded. Custom graphics for a car or building. An indie video game. A mural for one’s living room. All across the market, new sectors will be priced into the market that were previously priced out.

These are a set of massive assumptions unsupported by any actual evidence. I’ve heard a lot of claims that artists won’t be shoved out of the market by the use of AI systems, that they won’t be replaced etc. etc., and these arguments very often rely on historical analogy. The problem with such an analogy in this case (aside from it being overly simplistic and reductive in general) is that this new technology is unlike anything we’ve seen before, and its effects have already begun to extend beyond the world of art and into most other professions — including my own. (Not that I’d be all that broken up about finding something to do other than practicing law, but I still need a livelihood, you know? But apparently that’s simply a concern that can be hand-waved away by referring to a century-plus-old drop in the price of aluminum.)

And I won’t even get very far into the specifics here because this post is long enough as it is, but the assertion that indie video games can be made more affordable through the use of AI is just bizarre. Do they know how cheap (or even free) some of the best and most creative indie games out there are? I’ve featured some of them here on the site. Check out the games index page up top. I’ve also played a couple of games heavily featuring procedural generation, and they didn’t seem to be any cheaper than the rest. The assertion that the market will expand (without limit?) to accommodate supply in itself is faulty anyway, since we only have so much time in the day to “consume content” that’s pumped out by whatever the hypothetical future artificial intelligence machines can come up with.

What can be said, however, is those who refuse to acknowledge advancements in technology and instead fight against them are like whittlers mad at power tools. Yes, people will still want hand-made woodwork, and it’ll command a premium. But you relegate yourself to a smaller market.

Here’s my final point (I promise.) The writer(s) behind this attack on the Andersen plaintiffs’ complaint may very well be right about the ultimate effects on the market. I don’t believe they’ve proven a damn thing here, but that doesn’t mean they’re wrong either. However, the dismissal of legitimate concerns over the use of deep learning and image generation systems that many artists have expressed is pretty god damn glib, and combined with the condescension we’ve seen from some of these proponents, the strong resistance to their views and arguments should make sense. To put it bluntly, even crudely, it all comes off as pissing in the face of human creativity. In saying that, I’m not even blaming the technology itself, which I believe can have great uses. This isn’t a case of “tech bad”, as I’ve seen my arguments and others’ reduced to. But see my Pandora’s box reference above.

Why AI content generators can’t kill art (part 2: the one that actually matters)

I have to admit this, even as a lawyer (or especially as a lawyer) and as commenters confirmed in the last post: the law is often designed to protect those with power, money, and influence. I stand by my analysis of the legal situation in the first part of this post series, but I also don’t have very much faith in a political system that’s structurally pretty sound but run largely by people who don’t give a damn about the ideals they spout. If Hell exists, there may well be a special area for such people to hang around in, but in the meantime we have to deal with their rot and near-open corruption.

Partly for that reason, I think the US legal framework regarding the use of AI “art” may change soon, almost certainly through legislation, after corporate interests realize they can save a lot of money by not paying humans to create real art for their intellectual properties. I don’t believe artists will ever be out of a job entirely, but with the right (read: wrong) amendments made to the Copyright Act, plenty can be effectively made destitute.

So it feels pointless going on about the law, even if that is my field. I will be following legal developments and pending cases like Thaler v. Perlmutter (which if you aren’t, check my last post for more on why you should) but today I want to shift to a few moral and ethical questions surrounding AI “art” generation that I’m less qualified to talk about but that I’m more interested in in some sense.

“Look how cool it looks, it’s real art! I spent 1.5 hours tweaking my prompts”

I was originally going to put up a post about something else today, but man if Twitter didn’t just step in as usual to piss me off enough to push this post up in the queue: clowns pretending that their AI-generated images they pieced together in a matter of dozens of minutes using word prompts are “real art.” I’ve already addressed my feelings about whether this stuff is art (it isn’t) but clearly some people disagree with me.

Once again, the above is impressive. One year ago, we weren’t seeing AI producing images with this much detail. That’s ignoring the fact that some elements of these images are still off and clearly not human-created even after the fine-tuning this guy says he did — people have brought up the still-uncanny aspects of these images like their eyes and certain aspects of anatomy AI still can’t seem to quite pin down like fingers, the finer parts of the human body. I won’t get into that myself because 1) I’m no visual artist and 2) I think it’s reasonable to believe at the rate AI is advancing that it will get these down pretty well soon.

But yet again, the technical quality of these images is beside the point. Is it right for society to accept such AI-generated works as legitimate? Their legal status certainly has something to do with that, especially approaching it from a profit motive, but societal acceptance of this kind is a broader issue.

Before you might think “does it matter?” consider how culturally frowned upon plagiarism is. If you’ve ever written a paper for a school assignment as the vast majority of us probably have, you’ve been warned about not copying work without properly quoting and attributing it. A paper, article, or hell, a blog post — any of these can be beautifully written, but if they’re products of plagiarism, they’re widely deemed totally worthless. Plagiarism is rightly recognized as theft.*

Now consider how these AI engines operate. I got into it briefly before, but my basic understanding is that these programs generate images using vast pools of art for reference, basing the results off of the word prompts they’re given by the user. So for example, if you feed a prompt akin to “victorian large breasted hot woman in a fancy dress” you might get the following or similar:

If AI thinks big tiddy is the be-all end-all of the female form it is totally uncultured, but then perhaps that’s a reflection of humanity? Not that I have a problem with that particular form, but if I say any more I’ll get sidetracked so never mind.

Setting aside technical qualities again (these feature a few of the uncanny quirks that I still think will likely be sorted out in the near future as the AI engines continue to improve) what are these pieces exactly? They’re mashups of human-created works. Of course, a “mashup” of this kind produced by a human is art as well — it’s not like the existence of influences in an artist’s work makes it not art. In fact, it’s impossible to imagine art totally uninfluenced by other art unless you have some kind of highly unethical “person locked in a cage without human contact” experiment going.

The difference here is the method and the degree of copying. People have pointed out that some of the most popular AI-produced images use the work of artists like Greg Rutkowski and others who never consented to their art being used to train these systems. It’s not that we’re guessing at this outcome — users are actually typing “in the style of Greg Rutkowski” or whoever else into their prompts, so there’s no doubt about the copying.

This leads to what I think is the heart of the issue. Certain people advancing this technology as actually creating art have been, as far as I can tell, taking just the same soulless, empty approach to the value of creative works as our friends peddling their NFT garbage. No surprise then that there’s a fair overlap between the two groups: they both seem to have a love of reducing all human creation to “wow this looks cool” and “can it be marketed and sold”, ignoring the meaning behind art, the feeling, the context, everything that actually makes it interesting as art. Going back to art I don’t even like, I’m far more interested in understanding what motivated Mark Rothko to paint his color field works — there was a man who clearly was not in it for the money, not when you read his thoughts on his work and about how he even refused sales of some of his art to luxury hotels because he didn’t want it used as mere decoration for wealthy diners, instead donating it to galleries for public viewing.

Well, we have no use for this way of thinking anymore, do we? It’s old-fashioned. AI images are cool, and you can easily create large-breasted women with them or whatever else you like in a matter of minutes. Never mind that you can do exactly the same with a copy of fucking Koikatsu, yet nobody is trying to convince society that scenes out of that game are art worthy to be hung in galleries. In fact, a typical Koikatsu or MikuMikuDance scene is generally speaking far more creative with far greater human input required, so I’d strongly argue for its legitimacy as art over this nonsense. Even if 99% of it is made for one purpose alone.

If you really want to know, look it up (in private.) And here’s a clue to my likely next post. The screenshot, I mean. I’m not writing a post about Koikatsu unless someone really wants me to do it, but I have no idea what I’d even say about it.

Yes, I do believe the technology is going to continue improving and that legal standards will likely change to the great detriment of artists and art. But I also believe that AI won’t kill art. There are plenty of forms of art so complex that they simply can’t be replicated** — imagine an advanced AI-produced game with all the moving parts necessary to making that work, or an animated series for the same reason. Or take a novel or even a short story: as far as AI story generators have also come in the last few years, they still can’t produce anything better than somewhat coherent but ultimately meandering and meaningless trash without heavy human editing.

The same is true of visual art. As closely as some of the best AI engines can ape human artists’ styles or replicate or produce images based on photos, that’s all they’re doing. There’s still no thought behind the base results, not before a human starts making those edits, and even then if the base result is meaningless, how much meaning can touching up give the work?

If you’ve read this site for a while, you know I’m absolutely not a romantic type. But I do believe in the power of emotion and passion when it’s poured into a work or an activity. I wouldn’t write about art here if I didn’t care about that. And despite the tech bros’ gleeful insistence that AI is overtaking the arts, I believe most people still feel the way I do.

If you need some proof, look at the world of chess — programs built just for the purpose of playing the game have advanced far beyond Deep Blue in the 90s and are now unquestionably far better at it than the greatest champion. But do people now watch championships of rival AIs pitted against each other? I’m sure some people do, but many more watch inferior human intellects playing chess. Why? Maybe because that human element makes the game more interesting. People still give a shit about who Magnus Carlsen is despite the fact that Stockfish 13 has a far higher ELO. That fact gives me some comfort.

Me, I’d like to see what Osaka would do at the chessboard.

I don’t have much more to say on this subject, but I’m happy to hear readers’ thoughts on it, especially since I’m certainly not an AI expert. I was in a comfortable area talking about copyright in that first post, but I’m outside my zone of expertise now, so I’m happy to be corrected on the details if it’s necessary.


* [EDIT] A note on derivative works here, since I don’t think I addressed this point very well — just because a work is derivative of another doesn’t make it not art, and it doesn’t make it bad, but even the derivative elements and how they’re treated need actual thought behind their creation that I believe doesn’t figure into these AI works. We can get into hair-splitting pretty easily at this point, and I’m sure courts probably will do that at some point with these AI works as they have in the past in other copyright cases.

** And if we ever get to this point, it’s very likely AI will be so advanced that it can’t be distinguished from humanity, in which case we’ve entered the territory of works like Time of Eve and Her where we have to start thinking about them as having self-awareness and being integrated in some sense into human society. I’m not even going to get into that here, but I’ll just note that possibility in the endnote down here so the future AI superbeings at least know I considered it.

Why AI content generators can’t kill art (part 1: the legal framework)

Last year, I wrote about the short anime series Time of Eve, a science fiction story dealing with the relationship between humans and a set of androids with newly found sentience. In the course of that deep dive into the anime, I went on a tangent into AI “art” generation tools, asking whether artificial intelligence can truly create art as opposed to simply whipping up something derivative based entirely on user prompts and inputs and drawing from a pool of human-created work.

Time of Eve does indirectly deal with the issue of AI and creative expression, but I’ll be getting to that in the second part of this post run. The series is good though; go watch it.

I’m happy to say, reading that post back that after just a year, that it feels badly outdated, because we now have tools available to create far more impressive images, word collections, and sound files. The image generator Midjourney is so impressive that it generated a piece that won first prize in a digital art contest at the Colorado State Fair — a choice by the board of judges that pissed a lot of people off and got a ton of publicity for the winner, one Jason Allen, a tabletop RPG creator.

And I’m right there with the angry torch and pitchfork mob this time. The idea that an AI-generated image can win an award in the category of “digitally manipulated photography” might seem pretty logical — after all, that sounds like digital manipulation, doesn’t it? But digital tools made for artists like Photoshop and GIMP still require complete human control and input, whereas Midjourney requires that the user enter text prompts. If you’ve used DALL-E, you know how this works: type in whatever it is you’re looking for and you’ll get some depiction of said thing, assuming the AI can work out quite what it is you want. These tools don’t create art, as far as I can tell: they generate images that may or may not resemble art depending on how broadly you define the term.

In that Time of Eve analysis last year, I suggested that this material isn’t art, in part because there’s no intent to express anything behind the generation of each specific work. Some people may define art differently, but I can’t consider something art without at least this intent to express. I don’t like abstract expressionism; the drip paintings of Jackson Pollock and the color field paintings of Mark Rothko leave me completely cold, but I would never accuse them of not being art for just that reason. The same is even true of two guys I completely dumped on a while back, Damien Hirst and Jeff Koons — I find their work totally soulless and empty, but I can’t say they’re not trying to express something through it, even if that something is just “I like tricking rich people into thinking this piece has value” (in which case I actually respect that, but that’s a different matter.) And no matter how I might feel about their work, all four undoubtedly used techniques and put thought into those techniques in the creation of their work.

I actually like this “Théâtre D’opéra Spatial” image in itself more than a lot of what the above four guys have created. If you had just showed this to me and told me a human had painted it, I’d believe you, and it seems the judges felt the same way. It’s aesthetically pleasing.

I was going to post “Théâtre D’opéra Spatial” here, but the legal status and proper attribution of the image is in question, so instead here’s Kiryu on the dancefloor as a placeholder. I might replace this in the future if possible.

It’s also not art. It’s a mix of elements from pieces, images many of which were created with human thought and intent behind them, but put together in a way without that intent to express, by a machine fulfilling the requirements of a series of prompts.

Shockingly enough, US law isn’t lagging as far behind on this high-tech matter as it usually would be. One of the most relevant cases to this issue has to do not with AI but with animals. You may have heard of the “monkey selfie” case Naruto v. Slater, billed as an Indonesian macaque named Naruto (?) suing a wildlife photographer, David Slater, over the ownership of photos a group of macaques took when Slater placed his camera on the forest floor and let them approach it.

A few of these photos turned out well, and when they were published on Wikipedia without Slater’s permission, he came down on the Wikimedia Foundation arguing that he held copyright to the “monkey selfies”, with Wikimedia arguing in its defense that no one held copyright because the creator of the photos was a non-human and hence that they were in the public domain. The US Copyright Office found in favor of Wikimedia, putting the case to rest and letting Slater at least compile these and other photos into a book of his otherwise copyrighted work.

And now in comes People for the Ethical Treatment of Animals, inserting themselves into a controversy that nobody asked their opinion about but that they insisted on contributing to. PETA disputed both Slater’s position that he held copyright and Wikimedia’s that nobody did, instead asserting that Naruto himself held copyright since he snapped the photos. PETA sued as next friend of Naruto, a method of bringing legal action on behalf of a minor or of someone not mentally competent to act in their own interest. (They also very generously volunteered to act as administrator of the proceeds resulting from Naruto’s copyright.)

The Ninth Circuit on appeal found that PETA hadn’t properly established next friend status with Naruto, but far more importantly for our purposes here, it also found that PETA had failed to show that Naruto had standing under the Copyright Act, standing being someone’s right to sue in the first place.1 Part of the reasoning behind the decision not to extend copyright protection in such a case is that non-human animals don’t have the ability to express an “original intellectual conception.”2

The caselaw surrounding AI-generated images and other media is still nearly nonexistent, but early this year, the US Copyright Office confirmed that it will not recognize copyright in such media because it lacks sufficient human authorship. This decision arose from an ongoing fight in which one Dr. Stephen Thaler, co-creator of another AI image generation system called the Creativity Machine, claimed copyright over an image titled “A Recent Entrance to Paradise”. Dr. Thaler has filed suit disputing the Copyright Office’s rejection of his application to the DC district court, where the case is now pending.3

As Thaler’s attorney has argued (linked in the Smithsonian article above):

A.I. is able to make functionally creative output in the absence of a traditional human author and protecting A.I.-generated works with copyright is vital to promoting the production of socially valuable content. Providing this protection is required under current legal frameworks.

Setting aside Mr. Abbott’s use of the extremely vague term “socially valuable” to describe AI-generated content (it might have some social value anyway, sure, but that may even work against his argument considering the social value of the public domain concept) I believe his argument is total nonsense.

So let’s take it apart. AI makes “functionally creative output in the absence of a traditional human author.” But there is a human author involved. Many human authors, in fact, since the AI wouldn’t be able to generate a damn thing without its pool of existing human-created work to draw upon. That argument also ignores the human input necessary to generating said output, though I’d argue as the Copyright Office does that creating prompts, even many of them for the purposes of fine-tuning, doesn’t count as “human authorship” and doesn’t invest the prompt-writer with copyright ownership.

I suppose that’s why Abbott inserted the “traditional” to qualify his use of “human author” here, but it hardly matters, because again, this is an unforgivably vague term. What’s a non-traditional human author? The prompt-writer? The thousands or more of artists whose work was used (with permission or without, I’m not sure — that’s another issue entirely) to train these AI generators?

And while we’re picking apart his words, how about the use of the term “functionally creative”? Either something is creative or it isn’t. Using “functionally”, as far as I’m concerned, is basically an admission that both Abbott and his client know they can’t exactly argue AI-generated works are “created” in the same way as human-made works are, with actual thought and consideration instead of mechanical processes. In fact, I’d argue Naruto the macaque had a better claim to copyright over the photo he took than Dr. Thaler has to “A Recent Entrance to Paradise” through the Creativity Machine for the simple reason that a non-human animal can at least act independently and make its own choices without human prompting, whereas an AI can’t.4

Not yet, at least. But I’ll leave that for the second part of this post when I move away from the legal aspect of the AI “art” generation question and into the philosophical and moral ones. That’s something I’m not actually qualified to talk about, but I will anyway, because this really is far more than just a legal issue and I take an interest in both of its sides.

In the meantime, if you have any interest at all in these questions, be sure to follow the progress of Thaler v. Perlmutter, linked above at Court Listener. It may turn out to be a landmark case, though I hope not for the wrong reasons. Really, the suit should probably be thrown out on summary judgment.

From Pupa (2014), as a reminder that even bad art is still art. This isn’t a question of quality but rather of intentional creation.

Before I end this post and start working on the next, I’ll make a depressing prediction (as you expect from me!) I believe that as large, influential corporations see the value of AI-generated content, they and their special interest groups will push for changes to the Copyright Act to get rid of any ambiguity around the human authorship requirement commonly read into it in favor of AI-generated work that they don’t have to pay real flesh-and-blood visual artists for (and eventually also writers and musicians.) At the very least, I think they’ll be attracted by Stephen Thaler’s “my AI system is working for me under the work for hire doctrine” argument. I don’t see how this can be avoided unless these corps can somehow be shamed into not taking this route.

Well, regular people like us have just about no power over that. It still matters, but as with so many other things in this world, it feels to me like watching a trainwreck in slow motion — you can’t stop it from happening but just have to look on in horror as other people cry and laugh at it all.

But since it’s all useless, an effort may as well be made, because what do we have to lose? More on that whenever I can get to it, and maybe even without an endnote section nearly as long as the post proper. Until then.


1 I should note that the standing of animals under US law in general is a more complex issue. However, the Copyright Act specifically excludes non-human standing, and as a practical matter it’s hard to imagine what a macaque would do with its copyright ownership if the court had found in its favor. Naruto certainly didn’t know or give a damn about any of this nonsense, and the court rightly expressed doubts about PETA’s ultimate motives in their involvement.

2 Arcane legal hair-splitting time now, because it can’t be avoided. The US Copyright Office states in section 310.5 of its guide to copyrightable authorship that it “will not consider the author’s inspiration for the work, creative intent, or intended meaning” in determining the originality of authorship. However, it also states in section 306, The Human Authorship Requirement, that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the mind.’ (TradeMark Cases, 100 U.S. 82, 94 (1879).)” (Citation included in case you really want to dive deep into the exciting history of US copyright law.)

I read this to mean that while the Copyright Office doesn’t care about the artist’s specific intent and won’t bother making courts try to be mind-readers in that sense, it also demands that there be some kind of intent to create, which is proved simply by the creation of the work. Whether any of the smartest/most potentially self-aware non-human animals are capable of “original intellectual conception” (higher apes? Dolphins? Maybe crows?) is an interesting scientific question, but the legal one has been answered, at least for now.

Finally, I should note to be fair that the Copyright Act doesn’t explicitly require human authorship — this is just the understanding of the Act’s plain language by the Copyright Office and courts up until today. There’s good reason to believe that won’t remain the case too much longer, as I note near the end of the non-endnote section of this post.

3 Thaler is trying to pull a pretty absurd trick here. While acknowledging that the Creativity Machine can’t legally hold copyright in its product, Thaler himself claims the copyright under one of two possible legal theories: first, as the owner of the AI and therefore the AI’s product according to the accession and first possession doctrines of property law, just as a farmer owns the calf birthed by a cow he owns, or as the owner of a 3D printer owns whatever it produces. The trouble for Thaler here is that neither these nor any of his other comparisons (see p 13 of his complaint on) have anything to do with copyright investment and ownership.

In the alternative (meaning if the court were to properly reject the above argument) Thaler argues that he holds copyright in the Creativity Machine-generated piece under the work for hire doctrine. This is a well-established doctrine that grants copyright ownership to employers who hire artists and writers to create works.

Thaler is using this doctrine in a novel way here, to put it politely. To put it impolitely, I think his interpretation of work for hire is a load of shit. But we’ll see what the court thinks assuming his suit gets that far.

And just one more dig at Dr. Thaler and/or his attorney because I can’t help it: read paragraph 31 of the complaint. This argument of “well we could have tricked the Copyright Office by not telling them it was AI-created” is so beside the point it’s almost hilarious. But it’s also a scary point to make considering that the best AI-generated visual “art” does closely resemble human-created work.

4 I believe this point highlights one of the contradictions from the pro-AI copyright camp in this argument: on one hand, some defending Jason Allen and “his” piece claim a program or system like Midjourney or Stable Diffusion is merely a tool like a paintbrush or Photoshop, but then Dr. Thaler in his complaint claims that these systems possess creativity (see the “functionally creative” comment from his lawyer above.)

I see these as more tools than not, though they’re clearly not simply like a paintbrush or a program manipulated directly by a human artist as some are claiming (and even disingenuously claiming, maybe.) But I think the “AI generated content is art” crowd will have to pick an argument and stick with it. You can even see this self-contradiction in Thaler’s complaint: his first argument implicitly takes this “my system is just a tool” approach.

Deep reads #6: Artificial life in a natural world

It’s been a while since the last one of these, hasn’t it? It takes a long time to put these deep read posts together, but I always feel good by the end. This time, I dive into artificial intelligence, a field I have a lot of interest in but absolutely no technical knowledge about beyond the most basic level. For that reason, I’ve tried to avoid getting into those technical areas I don’t understand well, sticking to the more philosophical aspects that I can actually sort of write about. If you know more about the subject and can bring your own perspective to the comments section, I’d welcome that.

Also, some story spoilers for Time of Eve, and very very general ending spoilers for the film Ex Machina just in case you plan to watch these and want to go in blind, which is always best in my opinion. Just being safe as usual. And now on to the business.

Sometime in the future, society has started to integrate realistic human-looking androids into everyday life. Rikuo, a high school student, relies on his family’s household android to make his coffee and breakfast in place of his seemingly always absent parents.

One day, Rikuo checks on the movements of this android and discovers that she’s been visiting a mysterious location on a regular basis, a place that he never told her to visit. After letting his friend and classmate Masaki know about it, he decides to investigate by going there himself. And so he finds Time of Eve, a café with a special rule: no discrimination between humans and androids allowed.

Time of Eve is a six-episode original anime series aired online in 2008, sometimes listed under its Japanese name Eve no Jikan. It was on my list to watch for a long time until I finally got to it last year. And while I enjoyed it, the series also raised some questions, or maybe reminded me of questions I’d already been asking myself — questions way too big for my own puny mind about the future of humanity.

Most of the action in Time of Eve takes place in the café it’s named after. Rikuo and Masaki don’t fit in very well at first, though. The lone proprietor Nagi is welcoming and friendly, but she also demands that they stick to the house rule: no discrimination between human and android patrons. This even includes asking whether a patron is human or not, leading Rikuo and Masaki to look around and speculate about all the café’s customers.

But why would this even be an issue? As Masaki explains to Rikuo, Time of Eve operates within a gray area of the law. In response to the creation of humanoid robots so realistic that they’re passing the Turing test left and right, legislators have passed laws that require they use holographic halo-like rings to differentiate them from humans. At the café, nobody has a ring, but Rikuo knows his family’s household android has been here, and considering the house rule, it’s safe to assume that at least some of the patrons are androids with their rings turned off in violation of this law.

Further complicating matters is the fact that all the café’s customers seem human enough from the way they act. When Rikuo and Masaki meet Akiko, a chatty, excitable girl, they assume she’s a human like them.

The next day, while Masaki is teasing Rikuo about his wanting to see her at the café again, Akiko shows up at their school — not as a student, but as an android to deliver something to her owner there, now with the holographic ring over her head. The pair are shocked, and the effect is made all the stranger when she doesn’t acknowledge them there but is just as friendly as before when they return to the café later.

This strangeness ends up hitting Rikuo at home when he realizes that his family’s android — after a couple of episodes finally referred to by a name, Sammy — went to Time of Eve because she wanted to make a better cup of coffee for him and his family. Rikuo first loses it, demanding to know why she was taking her own initiative without any orders. Soon enough, however, Rikuo starts to accept the situation, and we can see him thinking of Sammy as more human-like. This invites mockery from both his older sister and his friend Masaki, who say he’s starting to sound like an “android-holic”, or someone who relies too much on androids in place of fellow humans.

This fear of androids isn’t totally unjustified. Time of Eve presents a world in which these humanoid beings, far more skilled than humans in technical ability, are taking jobs, not just as household servants and couriers but also as teachers and musicians. Rikuo has already been feeling the effects of this change — it’s revealed that he gave up playing the piano because android players were starting to overtake human ones. This is a change that hits Rikuo all the harder because being a pianist was a dream of his before, one that he clearly felt was taken away from him.

Another social change, one potentially disastrous for birth rates, is the new phenomenon of human-android sexual relations. Android-holics are even referred to as living with androids in romantic relationships. These people are somewhat ostracized and are heard being criticized and mocked. However, it’s still enough of a problem that an “Ethics Committee” headed by Masaki’s father works to keep human-android relationships in line, even running ads discouraging people from seeking out partnerships with androids, as human as they might seem on the surface.

All this boils down to a question that works in the sci-fi genre have been asking for a long time now: if an android is created that acts like a human and seems to have thoughts and feelings like we do, is it any different from a human in a meaningful way? Every year, with the development of more advanced robotics, augmented and virtual reality, and AI technologies, this question comes closer to leaving the realm of fiction and entering that of reality. How will people and their governments around the world react if or when AI starts to be integrated into society itself, even into the roles traditionally played by one’s relatives and partners?

I already wrote a bit about this theme in my extended look at Planetarian, a visual novel that’s largely about the relationship between a human and an android. But that story took place in the post-apocalypse. There’s no real concern about society in that world, where civilization has already been destroyed. Looking back, the contrast with Ex Machina might have been slightly off for that reason, though I still basically stand by everything I wrote then. However, I do think Time of Eve makes for a more effective contrast because it deals with some of the same questions Ex Machina did about the social implications of the human-android relationship, but again in a very different way.

I already wrote about all the faults I found with the treatment of this relationship in Ex Machina; you can find all that in the link above. But to put it briefly, director/writer Alex Garland seems to have assumed that humans and androids can never understand or empathize with each other. At least that’s the idea I felt Garland was communicating through the ending of Ex Machina.

Time of Eve, like Planetarian, doesn’t make that assumption. In fact, I’d say the central relationship between Rikuo and Sammy changes throughout the series because Rikuo realizes from his time at the café that they can understand and empathize with each other. The fact that Sammy is an android doesn’t seem to matter by the end; Rikuo accepts that she, Akiko, and the other androids around them may as well basically be treated as fellow humans instead of mere pieces of machinery.

These deeper issues surrounding human-AI relations are still some years off, since we’re still not close to creating a convincingly human android or AI for that matter — certainly not if Sophia is the best we can do at the moment. For that reason, Time of Eve still comes off very much as science fiction to me. Unless some of the wilder conspiracy theories I’ve heard are true, we don’t have realistic-looking human-styled androids walking among us.

However, the AI musician aspect of Time of Eve isn’t quite as far-fetched now as it might have seemed 13 years ago when it was aired, because AI has actually begun moving into — or intruding upon, depending on your perspective — artistic areas that were previously thought to be purely “natural”, purely human. In the last few years, AI tools to generate images, text, and sound files have become available to the general public. I am absolutely not an expert when it comes to the technology behind these tools, but my understanding is that consumer-level AI tools can roughly imitate human-created media by using pattern recognition.

Some of these tools are pretty damn impressive. Some time ago I came across a site featuring AI-generated paintings for sale, each piece created through a process described here. Again, I don’t quite understand the specifics behind how this works, but it seems like these pieces are generated when the AI analyzes human-created art and produces something original based on a particular style.

The AI comes up with some interesting-looking stuff as well. Here’s one example I like. Quite an abstract piece as you might expect, but the AI can also produce human figures and other subjects in more classical or traditional styles.

Visual art isn’t the only place AI has dabbled either. AI-produced music has made impressive strides, putting together songs that sound like something that might have come from a human composer if you didn’t know the difference. The above piece is a pretty basic sort of instrumental rock song, something that you might expect out of a studio that produces background or soundtrack music, but the AI does follow that formula well enough to create something coherent.

The same is even true of writing. This obviously hits home closest for me, since I’m a writer. An amateurish writer to be sure, but I still take pride in my thoroughly unprofessional work full of f-words and mediocre grammar. However, I can’t ignore the fact that AI is edging in on my territory. Predictive writing AI programs like AI Dungeon and NovelAI1 are designed to build stories based on the user’s prompts. Older programs produced pretty obvious nonsense, sometimes ending with an entertainingly bad result — see the AI-written Harry Potter and the Portrait of What Looked Like a Large Pile of Ash for an example of such material. But the newest technology is again pretty impressive, producing text that’s at least coherent most of the time.

The use of emerging technology for the purposes of art and entertainment is nothing new. You could argue that this process extends back thousands of years, through the creation of new musical instruments and drawing/painting tools. In that sense, even a modern innovation like Vocaloid is just one part of that long trend. For all the concern over synthesized singers replacing human ones, Hatsune Miku and her friends are essentially just new types of instruments, only with avatars and some fan-created backstory and personality attached. The songs are still composed by humans; they’re only artificial in the sense that they use synthetic as opposed to acoustic instruments.

Miku is basically a cute anime girl vocal synthesizer you can dress up. The best musical instrument since the piano, and maybe even better, because you damn well can’t put a piano in a cheerleader outfit or a swimsuit.

In the same sense, the trend towards VTubers in place of “real-life” streamers shouldn’t be a concern for people worried about the replacement of humans with AI. Funny enough, the original VTuber Kizuna Ai played on this theme, her character being an advanced AI learning about the human world. However, the only difference between a “real” human streamer and a VTuber is the use of an avatar. The fascination with VTubers might be more a part of an escapist trend, adding an element of fantasy to streaming with its cute angels, demons, and fox/dog/shark girls.2

Even so, between the increased use of synthetic instruments and tools and emerging AI art generation technologies, it’s not hard to imagine a future in which AI can put out work that resembles human-created art closely enough that it turns from a novelty to a viable, cost-effective alternative. This may be especially true of formulaic art created for mass consumption, the sort you hear and see and don’t think too much about. And I’d say it’s already somewhat true of the more abstract-looking pieces you can find on various AI-generated illustration sites — the sort that I could imagine hanging in an office hallway or hotel lobby somewhere, a piece that might just be vaguely noticed and passed by.

There’s an obvious objection to all this: that the works generated by AI lack meaning. There’s no intent behind them. It’s true that the general form of an AI-generated work might be determined by humans, who set the parameters for the program: what style to follow, what colors or tones to use, and essentially what sorts of human art it should imitate when generating something original. But the end result is something that can’t connect with an audience on an emotional level, or at least not intentionally. We humans are great at finding patterns when we want to find them, seeing shapes in clouds, hearing hidden messages in music played backwards. On that level, it might be possible to read some kind of meaning into a piece of AI-generated art, but that reading says nothing about the art itself and everything about its audience.

Shocking news: people who think rock is inspired by Satan hear Satanist messages in rock albums played backwards! I don’t need more proof than that.

To me, this lack of intent behind these artificial pieces of art makes them feel empty. Not that I hate or even dislike them — I find some of them really interesting, but only on a technical level. And some of that interest comes from seeing how these AI-generated works differ from human ones.

I think the lack of human-like thinking and intent is most obvious when an AI tries its hand at realistic-looking human figures; the ones I’ve seen have come out close but somewhat off and wrong, especially in their faces. Not in the way a human unskilled at drawing would mess them up, either — there’s a kind of technical “skill” in the AI work if you want to call it that, but details in the figure make it clear that the AI isn’t “thinking” about what it’s drawing in the same way a human would. See Edmond de Belamy,3 an AI-generated portrait of a fictional French nobleman, and how the face is smudged. Similar paintings that try for more detail seem to do a little worse, misplacing eyes and noses in curious ways and, for me, planting themselves firmly in that infamous Uncanny Valley.

Of course, there’s a lot of argument to be had over how much the intent of the artist should be taken into account when examining art. I take what I feel to be a pretty balanced view: that both how an artistic work is meant to be perceived and how it’s actually perceived are important to understanding it. When art is put out to public view, the public takes their own kind of ownership of it in the sense that they get to interpret it for themselves. But the artist’s intent still matters. Some people may feel differently, but if there is no intent behind the art, I can’t connect with it in the same way I could with a human-created piece.

But what if the art in question is so convincing and feels so meaningful that you can’t tell the difference? At that point, does the divide between the artificial and the organic even matter? This comes back to one of the central questions asked in Time of Eve. By the end of the series, Rikuo answers this question for himself by returning to the piano and playing for the café’s audience. By returning to the music he’d previously rejected because he felt it had been invaded by androids, he accepts them.

It’s clear enough that the androids in Time of Eve are essentially human in this sense. They’re completely differently when we see them in the outside world — Sammy and Akiko both act in a sort of robotic “just carrying out commands” way while in sight of humans, as if they’d get in trouble if they acted otherwise. When they’re in the café, by contrast, they act much more naturally, as if they’re letting out their breath after holding it in for a long time. It seems that all they want is to be spoken to as equals, as though they’re humans as well; the fact that they’re synthetic and we’re organic doesn’t make a difference.4

That’s the key to that central question in Time of Eve. Its androids are self-aware and have that intent and even emotion behind their actions. I think if a real-world AI can express that intent through the creation of original art not just based on analyzing scraps of existing human-created work, that would be a sign of AI so self-aware that it might essentially be considered human in the same way.5

Of course, as far as we know, we’re nowhere near that point yet. Any AI out there that the general public knows about (leaving a gap there for any possible ultra-secret experiments in progress) still thinks like AI. When I’m out driving and I have Google Maps guiding me, it still tells me to take a left turn by swinging through five lanes of busy traffic over a few hundred feet. That direction might make sense to an AI, but any human who’s ever been in a car will understand why it’s actually a terrible direction to give.

Maybe that’s the real test: when the AI understands what I’m going through when I’m driving my car in rush hour traffic and empathizes with my experience. At least enough to not suggest such a suicidal route.

Hey Google, I get that this is technically the fastest path to my destination by one and a half minutes but maybe consider my fucking blood pressure too. (Source: B137 – Own work, CC BY-SA 4.0.)

As for Time of Eve, there is one criticism I can make: that it might be a little too optimistic, especially for the reason that it doesn’t really address the whole “humans losing their jobs to more skilled androids” problem beyond just acknowledging it. It is absolutely a problem, in some sense one we’ve been facing for centuries now with automation of work starting in agriculture and leading up to the development of advanced AI today. It’s not a problem we can’t solve, but it is one that will probably cause a lot of social strife before that point.

Then again, this series provides a nice counterpoint to all the overly pessimistic science fiction we have today, the sort that’s practically anti-scientific development. Again, I’m definitely biased on this subject, but the Luddite approach to this problem is absolutely the wrong one. We shouldn’t try to limit our development out of fear of what might happen as a result.

Time of Eve doesn’t imply that everything will be sunshine and rainbows in the future. But it does deliver a more hopeful message than we usually see out of Hollywood these days. As much of a pessimist as I am generally, I can really appreciate that, and I’d say it’s absolutely worth watching even if you end up coming to a different conclusion. I, for one, welcome our new android friends, and I sincerely hope they don’t become our android overlords instead. 𒀭


1 AI Dungeon and the AI writing programs that gained popularity afterward make for another potential deep read rabbit hole subject. AI Dungeon was previously the premier AI story creation tool, but developer Latitude placed sexual and other mature content control filters on the program leading to suspensions, bans, and an exodus of users to alternative services.

I’ve messed around with both AI Dungeon and the much newer NovelAI, and while they’re interesting (well, AI Dungeon was interesting before it was utterly fucked by its own developer — the filter was supposedly meant to prevent certain types of extreme/gray-area material from being written, but it didn’t work properly and was extremely overbroad) the few times I tried writing a story with them, I ended up taking the prompt away from the AI and continuing it on my own. And now I have the rough rough draft of a very short fantasy action-adventure-romance novel that will never be published. Not unless there’s a market for shitty novellas that indulge in escapist fantasies that are somewhat different from the Fabio-on-the-cover supermarket romance trash variety.

Not that my story isn’t also trash, because it is, but I still like it. Maybe I should rework it into a visual novel script?

2 The parasocial relationship aspect of VTubing is still another deep dive that I’m sure a few people have taken already. I don’t know if I’m qualified to address it myself, but it is an interesting subject. Maybe it’s one I should address — not like I’m qualified at all to be writing about AI, yet here I am completely bullshitting about it.

Actually, I do know more about this other subject, since I’ve spent enough time in VTuber chats on YouTube to know that at least a few people are quite serious when they send love confessions and marriage proposals to their beloveds. Then again, that’s always been a thing idols have had to deal with, so maybe nothing’s really changed.

3 You can say this image lacks intent and meaning, but it sure as hell doesn’t lack value: it sold for almost half a million dollars when it was put up for auction a few years ago, probably for its novelty value since it was touted as the first piece of AI-generated art to ever come to auction. I wouldn’t buy it for more than $20 myself, but since I’m not a member of the idle rich set, my opinion doesn’t matter when it comes to these big-ticket auctions.

4 Of course, there’s also a religious aspect to this question, since many people believe that a God-given or otherwise divinely created soul is the most essential part of what makes us human. That’s a debate I don’t feel qualified to get into — I leave it to the scientists, theologians, and philosophers to argue over all that.

5 To complicate matters further: you could argue that this is exactly what we humans do when we create art, since everything we make takes at least some inspiration from past works of art. But there’s usually more to the creation of art than just copying our influences — we filter those older works through our personal experiences and feelings and create something that’s our own, even if it’s somewhat derivative. The same can’t be said for these AI artists, at least not yet.