Can an A.I. That Makes Its Own Unique Works Be Granted Copyright? + More Artists-Rights’ Questions, Answered

Plus, why aren’t the creators of the Unofficial Bridgerton Musical protected by parody laws? And can I create a silkscreen of YouTube’s LoFi Girl?

Steven Thaler has unsuccesfully sought copyright protection for the AI-created A Recent Entrance to Paradise. Image via US Copyright Office.
Steven Thaler has unsuccesfully sought copyright protection for the AI-created A Recent Entrance to Paradise.
Image via US Copyright Office.

Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work. 

Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article. 

 

I’m an NFT-adjacent artist who has managed to write a program that generates digital art that is so unique, I don’t think I can call it mine. Is it possible to name my algorithm the author of these works in a copyright court?

I’m afraid not. The U.S. Copyright Office’s Copyright Compendium is quite clear on this: “The Office will refuse to register a claim if it determines that a human being did not create the work.” But here’s the upside: You, the human, are able to copyright the work and make money off of it. Not a bad consolation, really. 

Since Artists Rights Society represents more than 122,000 artists and estates worldwide, we have naturally been approached by many in the NFT/web3 space hoping to license work by our artists, so I’m familiar with the push to grant artificial intelligence the ability to copyright its work. Many of these people want to mechanize the creation of art because, if you’re trying to turn it into an actual fast-trading commodity, it helps to have quantity. All 10,000 of the Bored Apes are, of course, randomly generated.

But it’s something else entirely to insist that your machines be granted copyright, which in this country comes with a host of sacrosanct privileges. Some years ago, the Whitney showed a version of Blade Runner that had been autoencoded by an AI and I think about it often when questions like this come up, because it seems to me that the people pushing for AI copyrights are a bit like Rutger Hauer’s character, i.e., zealots pushing robot civil rights via questionable methods. 

The most recent high-profile case of such advocacy involves a decision this spring by the Copyright Review Board, which rejected an appeal by Dr. Stephen Thayler to have his “Creativity Machine” listed as the author of A Recent Entrance to Paradise, a “simulated near-death experience” that looks suspiciously like a screensaver to me—but then again I’ve never died.

The art is besides the point, Thayler’s lawyer told Artnet, calling it an “academic project” to test copyright standards. “AI is able to make functionally creative output in the absence of a traditional human author and protecting AI-generated works with copyright is vital to promoting the production of socially valuable content,” he said.

I’m not sure everyone would agree with either of those statements, but since you seem to share Dr. Thaler’s yen to extend copyright to replicant artists, I will say that Canada’s copyright authority recently named an AI as co-author of a work. So if you’re desperate, you could always take a road trip north of the border for a quick legal ceremony involving you and your AI partner. Just be sure to establish boundaries early in the relationship. You don’t want to end up like that guy from Google who was convinced his chatbot had feelings

A side note on NFTs: ARS is launching their own NFT platform, ARSNL, with a digital work by Frank Stella on September 8. Please head to ARSNL.art  for more information!

 


I heard that the makers of the Unofficial Bridgerton Musical were sued for copyright infringement. How is that possible? Weren’t they covered by their title?

I heard about this myself and was, at first, similarly confused. You don’t have to be a former theater kid to know that off-license is the lifeblood of Off Off Broadway. There have been unofficial adaptations of The Office, and of Love Actually. The list is long. They even made a musical version of The Bachelor

If you click on those links, you’ll notice that the titles of those plays all have the word “parody” in them, even though one imagines them to be less parodies than loving homages. This is likely because—as we’ve discussed a few times—parody is one of the most protected forms of speech, thanks to a 1994 decision by the Supreme Court that defended 2LiveCrew’s beef with Roy Orbison. You used to see the word “parody” tacked onto pornography DVDs that would offer sex scenes on the bridge of the Enterprise, but very little in the way of laughs. 

Though Bridgerton is infamously randy, the creators of the Bridgerton musical came to the milieu honestly. Barlow & Bear, as they are known, are both under 25, wrote the songs from their bedrooms, and posted them to TikTok, where they gained a huge following. These came together into an album that won a Grammy. Netflix would be nothing without its fans on social media, and although the “unofficial” label was accurate, all of this was done with their approval.  

But staging an actual musical seemed to be a Bridgerton too far. Performing songs live comes with a whole different set of license requirements, compared to just recording them, and while Netflix apparently offered them the permission to stage their musical, it seems Barlow & Bear rejected the offer, perhaps because they did not consider the terms of the deal favorable enough to them. 

“There is so much joy in seeing audiences fall in love with Bridgerton and watching the creative ways they express their fandom,” creator Shonda Rhimes wrote in a statement. “What started as a fun celebration by Barlow & Bear on social media has turned into the blatant taking of intellectual property, solely for Barlow & Bear’s financial benefit.”

We often point out in this column that hurting the market for the original product is a big factor in copyright infringement cases, and you may not be aware that Netflix actually does already produce live events for Bridgerton, such as The Queen’s Ball: A Bridgerton Experience, which has a cash bar, like all of the queen’s other parties.

The Unofficial Bridgerton Musical performance also represents the first time Barlow & Bear stood to make real money off their product, with tickets going for up to $149 in Washington D.C. When you consider the paltry amount that goes to artists on streaming services like Spotify, Netflix probably viewed the missed income on Barlow & Bear’s album as the cheapest part of their marketing budget.

 

Sherrie Levine’s Fountain (Buddha) (1996) and Marcel Duchamp’s Fountain (1917) on view at the Whitechapel gallery in London in 2010. Photo: Reuters/Toby Melville.

Your response to last month’s question about hip-hop artists referencing the work of visual artists made me wonder: How can it be legal for an artist like Sherrie Levine to literally reproduce in full an artwork by someone else. Wouldn’t copyright clearance be required like it is when a musician covers someone else’s song? How are these things different?

I’m not a lawyer, but let’s begin with the legal differences. When “Come Together” by The Beatles was covered by Aerosmith in 1978, the latter had to pay for what is called a mechanical license—royalties that are generated each time a composition is reproduced in a fixed medium such as a CD, LP, cassette tape, minidisc, or any other technical relic from the glorious 20th century.

Releasing a cover on a digital streaming platform is easier today, since no mechanical license is required. Instead, blanket mechanical licenses that digital streaming platforms (like Spotify) already have with music publishers and rights organizations automatically compensate copyright holders for any covers of their work that are played on the platform. 

Kate Bush’s 1985 hit “Running Up That Hill (A Deal With God)” has been burning up the charts since it was featured on the recent season of Netflix’s Stranger Things. Its appearance required a synchronization license, which is what you need to play a song over a distributed video, whether it’s made by Hollywood or a Twitch streamer—but we’re already a little in the weeds here, so we won’t delve into that any more.

Since then, the song has been covered by countless TikTok users, alongside a wide array of recording musicians including Halsey, Katherine Cordova, Meg Myers, Placebo, Kim Petras, and Loveless. As all these new versions stream on Spotify and Apple Music, the royalty is paid to Bush—the copyright owner—automatically, thanks to the blanket licensing agreement. Fortune reports that it is extremely rare for a musician to own the copyright to the original recording of their songs, so back in 1985, Kate Bush clearly made the right decision to keep hers, and is estimated to have raked in $2.3 million since the episode that used her song first aired a few months ago. 

By now, I’m sure you already see the difference between Kate Bush covers and the work of Sherrie Levine. Yes, she made a gold urinal and placed it on a plinth in the same manner as Duchamp’s Fountain (1917), and called it Fountain (Buddha) (1996), but no one would mistake this piece by Levine for the original Duchamp. For one thing, nobody really knows what happened to that sculpture, which is cool. But also, the original is too famous. You wouldn’t expect to find it in a gallery of new art.

Levine’s work is clearly a commentary of the supposed “aura” of an authentic art object and long-held art historical notions regarding originality. Her Fountain is also a commentary on Duchamp’s work in a way that a reverential re-creation of Bush’s is not. 

When it comes to covers, the mediums just do them differently. The galleries that sell the work of Sturtevant are not trying to pass it off as the work of the artists she’s copying. In fact, if her Warhols give you the same zing as the originals, you’re kind of misunderstanding both artists. Cover songs, on the other hand, do piggyback on the magic of the original song. I think we can all agree Kate Bush deserves her cut.

 


I’m making a silk-screen of perhaps the most elusive and intriguing icon of our era: The girl from the “lofi hip hop radio — beats to relax/study to” radio station on YouTube. Do I need to clear this with anyone?

I assume that you’re asking this because LoFi Girl went very lofi indeed when she went offline earlier this month due to a copyright lawsuit. Though your circumstances are different, you’re right to be wary, because you’re still in YouTube country, where outlaw justice prevails. 

If you don’t know what we’re talking about, LoFi Girl is the nickname of a YouTube radio channel that boasts 11 million subscribers and offers lyric-less, hip-hop-adjacent chill out rhythms suitable for your coffee shop, LSAT cramming or ayahuasca ceremony.

The name comes from the animated mascot that appears in the box where videos usually play, and LoFi Girl’s fame is pretty remarkable when you consider that the image for this music channel is really just a placeholder. It’s not like LoFi Girl has adventures. Occasionally she will turn the page of her notebook or look out the window but for the most part she just sits at her desk writing. Yet this is enough to have inspired LoFi Girl memes and a Disney tribute album that features Minnie Mouse as LoFi Girl

LoFi Girl was created by the artist Juan Pablo Machado, though her origins, in fact, go back to another copyright issue. The channel had initially used this image from the 1995 Studio Ghibli movie Whisper of the Heart, but swapped that out for the knock-off we’ve all come to know and love today as the channel grew in popularity

Why? Because as has been covered here before, YouTube is a copyright minefield at the moment, where even an unlicensed thumbnail image can get you in trouble. In the case of this most recent LoFi Girl takedown, the channel went dark for two days following a copyright abuse allegation by a Malaysian record label that YouTube later deemed “abusive” and without merit. Yet they still managed to take down one of YouTube’s biggest music channels for two days! Copyright claims on YouTube are semi-automated and very easy to dole out. Last year the company processed over 1.5 billion of them

I assume your proposed project is going to be art rather than merchandise, since you’re writing to this column about it, and that’s an element in your favor. When it comes to free speech, art is generally more protected than merchandise, though when it comes to merchandise, the LoFi crew doesn’t seem to be that litigious anyway, as there already exists plenty of licensed and unlicensed materials.

Moreover, it’s important to remember that we’re discussing an animation that was already a copyright proof-imitation of original material by Studio Ghibli. It would be hard to go to a judge and argue that this is a wholly original creation. Even factoring in the YouTube element, I’d say you’re probably safe here.

 


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