It is unlikely that Thaler will get the acceptance of the Creativity Machine’s “humanity” that he wants from the Copyright Office. Nor should he – radically redefining our perception of what it means to be human is not a task that should fall to the Register of Copyrights, an unelected and relatively obscure official appointed by the Library of Congress. But Thaler and other generative artists deserve the recognition and control that would come with at least being able to register themselves as authors of these works. As more and more artists turn to generic code and other algorithmic tools to do their work, we should consider extending the protection to the products of these methods.
Admittedly, many artists in the generative art movement could not care less whether their work is entitled to copyright protection. Yet. “Many of the people who participate in the crypto space and who come from a programming or coding or engineering background have the open source ethos,” says Erick Calderon, founder of the NFT platform Art blocks. But Calderon says he sees artists start thinking about protecting their images “the first time when someone exploits your work and you feel a little bit offended where you just sit and go, ‘oh, man, that would would have been nice for them to have asked me. ‘”
Unauthorized appropriation of an artist’s work for commercial purposes, where significant sums of money are at stake, is considered by many to be unfair. And Calderon, an artist himself, sees unauthorized appropriation as both an economic and political issue. “I would be worried if you started a shawarma restaurant and used one Chromie Squiggle as a logo, ”he says, referring to his signature-generating project. “That’s not necessarily the artistic intention I had behind Squiggles.” It is also important for Calderon to be able to prevent his work from being used for hate speech. Without copyright, artists would have limited access when they saw their work being used to adorn the flag of an organization they found ideologically repulsive, or when they heard their music being used as a campaign rally soundtrack to a candidate they despised. Generative artists should also be able to take advantage of these protections. Their work may be computer-generated, but it’s not all generic – the best of it exhibits a distinct style that can be easily associated with the artist by those who know it.
There are other, less utilitarian reasons to make copyright available to generative artists. We make art for all sorts of reasons, some petty and some deep, some rational and some very irrational. It makes sense to let artists profit from their work through copyright, not because there would be no art without the cash incentive, but because money is the imperfect language that the law uses to shape and communicate values. We want – or should want – to live in a society that values art and artists. And art that, in fundamentally, deeply disturbing ways, challenges our understanding of what it means to be human is precisely the kind of art that our system should support, or if you prefer, incentives.
There is precedent that could be useful here. We let directors – or their studios – register the films they make with the Copyright Office. Although a film brings together the work of many different contributors – including machines and occasional animals – we are comfortable assigning the copyright to the “mastermind” behind the film, the director who “supervised the whole work”, as one case puts it. There are hugely important differences between what film directors and generative coders do, but our model for assigning copyright to the former could be a useful template for appropriately appreciating what it is the latter does.
Some might argue that extending copyright protection to generative art would hamper creative production in general by making it too “easy” to create a copyrighted work. A copyright troll with the right coding skills could generate a thousand images in seconds and then use them as bait. But new technologies have always provided opportunities for trolls, and our caution against bad actors who exploit the system should not prevent us from striving to design a copyright regime that truly lives up to its constitutional mandate.
Thaler’s perspective may seem extreme, but philosophers, environmentalists, and artists increasingly embrace a post-human perspective for understanding and navigating the crises of our time. The law, including copyright law, should help ease these important lines of inquiry, not stand in the way.