Ed Klaris

From Art to Artificial Intelligence

The U.S. Patent and Trademark Office last week held its second public meeting on Developing the Digital Marketplace for Copyrighted Works, where one of the topics of discussion was whether and how works authored by a computer running artificial intelligence software should be regarded for purposes of copyright law (disclosure: I was an informal adviser to the PTO on the program for the event).

The question is not merely academic. Companies like Amper Music in the U.S. and Aiva Technologies in Luxembourg are using A.I systems today to create original production music, while Google engineers have taught A.I. systems to create music and art, and to take photographs that professional photographers have trouble distinguishing from professional landscape shots. Works created at least in part by machines are already entering the stream of commerce.

KlarisIP managing partner Edward Klaris

There is a broad, although not universally shared, consensus among legal experts that under U.S. copyright law, non-human actors, whether machine or monkey, cannot be considered to own a copyright. But that still leaves a host of vexing questions likely to occupy courts for many years. If the machine cannot own the copyright on a machine-made work, can anyone, and if so, whom? The owner of the machine? The author of the software program? The human who pushes “start”? Or, should machine-made works be considered in the public domain?

If a copyright is to be assigned, how much creative input must a human provide, and at what stage of the process, to claim it? If there is no copyright, what if any other legal basis is there for licensing their use?

At the Digital Entertainment World conference in Los Angeles February 5-6, KlarisLaw and KlarisIP managing partner Edward Klaris will explore some of those questions in a special presentation called From Art to Artificial Intelligence.

Klaris previewed some of his thoughts on the topic in a blog post this week for Intellectual Property Watch:

The concept of encouraging the production of creative work by protecting it — incentivizing authors financially — is embedded in our Constitution. The Intellectual Property Clause expressly aims “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

In drafting the black-and-white clarity of this clause, our framers could hardly have anticipated the highly gray area of bots making copyrighted works.  You don’t have to incentivize a bot; a machine simply does what it was programmed to do without any need for financial motivation.  That is why the court declined to award a copyright in a work created by a monkey.  Monkeys are not financially incentivized to create works, and even if they were, the monopoly afforded copyright holders was not intended for animals.

In a world where bots may eventually dominate the creative space — manipulating, arranging, color-correcting, filming, and ordering literary, audio and visual content – courts may decide that works created without human input belong in the public domain with no protection. Or, if copyright is granted, bots’ output would be protected for potentially more than 100 years under current copyright law.  Which is better?  What path best promotes our country’s fundamental interest in “the progress of science and useful arts”? And, should copyright subsist for fewer years under certain circumstances?

Klaris’ presentation will be held on February 6 as part of the RightsTech track at DEW. To view the full RightsTech agenda click here. For information on how to register for the event click here.


Creative Ghosts in the Machine

One of the highlights of last month’s RightsTech Summit was the riveting debate between Ed Klaris of KlarisIP and Drew Silverstein of Amper Music over who (or what?) should own the copyright on musical works produced autonomously by a computer powered by artificial intelligence software.

Ed Klaris, left, and Drew Silverstein at the RightsTech Summit

Klaris was clear that whoever owns the rights, it’s not the machine. Even the most autonomous of A.I. agents, he argued, by definition cannot exercise the sort of creativity and originality that U.S. copyright law requires without human input. Therefore, any originality in the work, the sine qua non of copyright, comes from humans and the copyright belongs to some human entity, whether individual or corporate.

Silverstein, whose company markets an A.I.-based music composer and performer, argued for a more expansive view of machine-made music. Claims being advanced on, or on the behalf of software output are inevitable, he proposed  and it is too soon to take a categorical position on their merits.

The 30-minute debate, fascinating as it was, obviously didn’t settle the argument, which is really just getting underway. U.S. copyright law is clear on the need for a human author. It’s goal, after all, is to incentivize human creativity. But the line between man and machine is only likely to get fuzzier as technologies like artificial intelligence, machine learning, and virtual reality advance. How and where to draw that line is bound to become contentious.

The Hollywood Reporter Esq. columnist Eriq Gardner flags a fascinating case involving an infringement claim brought by the maker of MOVA, a computer-based system that captures human facial expressions and uses them to create photo-realistic graphic effects, against several Hollywood studios that used a an allegedly purloined version of MOVA to create effects in blockbuster movies, including Guardians of the GalaxyAvengers: Age of UltronDeadpool, and The Curious Case of Benjamin Button, among others.

The plaintiff in the case, MOVA inventor Rearden LLC, makes a number of patent and trademark claims related to the studios’ use of an allegedly stolen version of MOVA. But it also makes the jaw-dropping claim that any originality in the creative output of the MOVA system is the result not of any human input but to the design of the system itself, and therefore Rearden owns the copyright on that output.

Rearden was founded in 1999 by Silicon Valley inventor Steve Perlman, who claims to own the MOVA software. In 2012, Perlman transferred the MOVA assets to a second company, OnLive Inc. At that point, Perlman alleges, two of his then-employees secretly formed another company and negotiated the acquisition of OnLive and the MOVA assets. In 2013 those assets were sold to Chinese investors, who transferred them around among multiple corporate entities. At the same time, the MOVA technology was licensed in the U.S. exclusively to effects-house Digital Domain 3.0, which used the technology to produce graphics work for the studio defendants.

Rearden, meanwhile, sued the Chinese companies and last year won an injunction that bars Digital Domain from continuing to use the MOVA technology.

The studio defendants, Disney, Fox and Paramount, do not dispute that the MOVA technology may have been stolen. But they strongly reject the claim that the owner of MOVA, whether Rearden or someone else, also owns the copyright on the work it produces. What show up on the screen, they claim, is chiefly the result of human inputs, from the film’s direction, the performances of the actors, and the photography of the cinematographer. To argue that the owner of the effects software also owns its output, the studios say, makes no more sense than arguing that Microsoft owns the copyright on any work produced using Word, or Adobe any work produced in Photoshop.

Rearden is having none of it, and here is the nut of its argument as spelled out in the complaint:

[H]ere, the work at issue is the program’s output, in particular, the three-dimensional Captured Surface and Tracking Mesh. The MOVA Contour system takes two-dimensional camera captures as input, and the program then synthesizes them into three-dimensional outputs with subtlety and artistry, based on creative choices made by its programmers and embodied in its copyrighted software instructions…[D]uring MOVA Contour performance capture, the director cannot choose camera angles because the cameras are fixed in the MOVA Contour rigging; there can be no “selecting and arranging the costume, draperies, and other various accessories,” because the capture is of only the random patterns on the actor’s face and neck; and there can be no “arranging and disposing the light and shade,” because the lighting is also fixed in the rigging, and a random pattern of glowing makeup applied to the actor’s skin eliminates shadows for an evenly-lit random pattern.

Similarly, defendants’ argument that Rearden’s claim is analogous to Microsoft claiming a copyright in a book by an author who used Word to write it, or Adobe claiming a copyright in the artwork by an artist who used Photoshop to create it are equally inapt. Generally, an author writes a book by typing every word into a Word document, and an artist creates a work of art by deciding on specific treatment of every pixel in a Photoshop file. But in neither case does their work provide input to software that synthesizes an original expression that is distinct from the author’s or artist’s input. Here, neither the actor nor the director create a Captured Surface or Tracking Mesh output. The actor performs, and a director may direct the performance, and two-dimensional glowing random patterns are captured. But the works at issue here are not the two-dimensional captures; rather, the works at issue are the MOVA Contour program’s output, in particular, the three dimensional Captured Surface and Tracking Mesh created entirely by the MOVA Contour program.

It’s a bold argument, and there’s no telling at this point how a court might ultimately rule on it. The argument over whether the tool maker or the tool user is the author of what the tool helps create may be settled as a matter of law. But as the tools grow ever more sophisticated, the debate over how to tell the difference is far from over.

Featured image: Google DeepDream

From Monkey Business to Machine-Made Music

With the long-running litigation between People for the Ethical Treatment of Animals (PETA) and photographer David Slater over the now world famous “monkey selfie” still pending before the U.S. Ninth Circuit Court of Appeals, the two sides have agreed to settle the case and have asked the court to dismiss the appeal, according to a joint statement put out by the parties.

But the settlement of the lawsuit isn’t likely to end the debate over how courts and the law should regard works created by non-human authors. In fact, the debate may only be getting started.

For one thing, as The Hollywood Reporter’s legal columnist Eriq Gardner notes, the “settlement” between PETA and Slater doesn’t fully settle the case between them. In their joint motion to the court to dismiss the appeal, the parties also ask that the original lower-court ruling that monkeys do not have standing to enforce claims under the Copyright Act. If granted, that would presumably leave the door open for PETA or someone else to bring a future claim with a different set of facts.

“PETA contends it would be just and proper to not bind Plaintiff Naruto [the monkey] by the judgment of the district court in light of the dispute concerning PETA’s status to file the complaint which resulted in that judgment,” the complaint says.

In a footnote, Slater’s side demurs, “Pursuant to the terms of the parties’ settlement agreement, Defendants also join PETA’s request for vacatur, without joining or taking any position as to the bases for that request.”

Moreover, the statement released by the parties does not say whether they have in fact agreed on who actually owns the copyright in the photographs taken by the Naruto. According to the statement, Slater has agreed to “donate 25% of future gross revenue from the Monkey Selfie photographs to charitable organizations dedicated to protecting and improving the welfare and habitat of Naruto and crested black macaques in Indonesia.”

Does that mean he has agreed to some sort of shared, or split ownership of the copyright between himself and some other entity on behalf of Naruto? Does PETA, or someone else, have the right to an accounting of Slater’s earnings from the photographs? Who will have standing to bring claims against future unlicensed uses? The statement doesn’t say.

Since the case was settled, whatever provisions the parties may have made with respect to those questions will remain private, and do not establish any sort of legal precedent. Yet, while monkeys may not be rushing to set up Instagram accounts to show off their selfies, works created through machine-learning processes and artificial intelligence are becoming more common. And the question of how (or whether) to fit works created by non-human agents into existing licensing structures is only likely to grow more urgent.

A.I. researchers researchers at Google, for instance, have taught an artificial neural network called Creatism to take aesthetically sophisticated photographs that in A/B tests many professional photographers were unable to distinguish from human-made shots.

Google arXiv

Music composed by artificial-intelligence agents is increasingly finding its way into the soundtracks of advertisements, videogames, apps, and other contexts where suitable human-authored works are either not available or too costly.

It may not be long before A.I.-composed pop tunes start turning up in Spotify playlists alongside the works of anonymous or pseudonymous artists already popping up there.

Those questions will be the focus of two special presentations at this month’s RightsTech Summit in New York.

In one, Edward Klaris, managing partner in the media and intellectual property law firm KlarisIP will offer a global perspective on artificial intelligence and copyright protections.

A second, roundtable presentation, will focus on the specific case of machine-made music. It will feature Drew Silverstein, founder and CEO of Amper Music, an A.I. composer, performer and producer for creating music for soundtracks, and Arnaud Decker of Luxembourg-based Aiva Technologies, which has developed the first A.I. agent to be registered with a collective rights management organization.

The RightsTech Summit will be held on September 27th at the Museum of Jewish Heritage in lower-Manhattan as part of the 2-day New York Media Festival.  Click here for a full list of speakers at this year’s summit. Click here for information on how to register for the RightsTech Summit and the full NY Media Festival.


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