Application of Artificial Intelligence in the Arts and Implications for Copyright | Caldwell Intellectual Property Law


Artificial intelligence and societal roles

The use of artificial intelligence (“AI”) continues to expand into certain aspects of our lives. From shopping to healthcare, everyone has benefited from the implementation of such technology. Artificial intelligence is the ability of a machine to display human-like behavior in areas such as learning, reasoning and creativity. Should machines have such a prominent role in our lives? What are the legal implications of such use? Other blog posts and websites have covered these and other questions.

The arts have also been fertile ground for research into the use of artificial intelligence. The question is a fundamental question of who is the artist? The programmer? The computer that generated the job? Is the computer-generated work sufficiently creative or original for copyright registration under copyright law? Can a computer be an artist? There are no simple answers, and artists, computer engineers, and copyright offices around the world are also wrestling with these questions.

Artistic works generated by AI raise the question of who owns the intellectual property rights to the work. In the United States, the Constitution is the basis of copyright law¹. The framers of the Constitution presumed that the perpetrators are human beings and not machines, although it is clear that the Constitution does not make this distinction. the New Oxford American Dictionary defines an “artist” as “a person who produces paintings or drawings as a profession or hobby” or “a person who practices one of the creative arts such as sculptor, novelist, poet or filmmaker”². Furthermore, a “person” is defined as “a human being considered as an individual”³.

Copyright law, for example, raises the question of the originality and creativity of the work. In the United States, for copyright protection, the work must be “an original to works paternity fixed on any tangible medium of expression”⁴. An example of a type of artificial intelligence is machine learning. The idea behind machine learning is that it receives training data to learn and make predictions. The training data may consist of the output data examples and the corresponding sets of input data that influence the output. The learning model runs the input data through the algorithm to correlate the processed output with the sample output. In general, there are two types of learning: supervised and unsupervised. Supervised learning occurs when the learning data already contains the input and output values. Unsupervised learning involves determining patterns in data when there is no predefined output.

Using AI in Music

An example is the use of artificial intelligence to complete Beethoven’s 10 Unfinishedand symphony⁵. The 10and The symphony not only used recordings of Beethoven, but also pieces of music that may have influenced Beethoven at the time, including pieces by Johann Sebastian Bach. The artificial intelligence repeatedly reassembled fragments of existing music tracks, layered them and mixed them. Ultimately, this resulted in a score for Beethoven’s 10th Symphony “AI” by composer Walter Werzowa and the Beethoven Orchestra Bonn.

As shown on 10and example of symphony, music AI is based on data collection of music tracks, symphonies and operas – created by another party. For example, a machine learning system can use a composer’s known music to train a machine learning model to eventually generate a new musical work. Originality could become a problem; however, the way these pieces fit together using an algorithm can show the originality of this newly created piece. In addition, the algorithm itself, created by a person, may also be subject to copyright protection.

Use of AI in literary works

Should it be possible for an author to benefit from copyright protection for a work generated with the help of artificial intelligence? As we saw earlier, copyright law requires an identifiable person. The Copyright Office requires not only an identifiable human author for registration, but also human authorship of the copyrighted work⁶.

AI is used in sectors such as journalism. For example, Narrative Science®’s patented Quill™, software that produces news stories and features⁷. As described on their website, creating a story is as easy as selecting the data someone wants to write about⁸. The power of these tools is that “they explain your data in a way anyone can understand – with stories”⁹.

For general writing, AI assistance such as Sudowrite provides an AI engine that can “eliminate writer’s block with our magic writing AI”¹⁰. Sudowrite uses as its base a GPT-3 or “generative pre-trained transformer 3”, created by OpenAI, an artificial intelligence research laboratory in San Francisco, and acquired by Microsoft® in 2019. The deep learning model of 175 billions of parameters can produce human-like text and learn from large textual datasets containing hundreds of billions of words.

Copyright law does not necessarily exclude works that used AI writing assistants from copyright registration. Although there is currently no case law indicating in which direction courts can rule in this area, there may still be a level of creativity provided by a human author, as the author may simply want inspiration from an AI assistant rather than using his words verbatim. The Copyright Office may require statistics indicating what percentage of the work used the AI ​​assistant versus the human author. However, such metrics may be difficult to obtain from these helpers as they may not be capable of such operation.

Use of AI in the visual arts

In the summer of 2021, engineers used artificial intelligence to restore Rembrandt’s work The night watch¹¹. The scientists used neural networks to scale the missing elements from the copy to the original. Another set of algorithms helped them match Rembrandt’s signature style of light and shadow as they “expanded” the piece to its full form.

Additionally, the artists created a work titled “Portrait of Edmond De Belamy” with a computer-generated algorithm:

The coin sold for $432,500, 45 times its expected price¹². The painting includes a signature on the lower right that includes a piece of the algorithm that produced the artwork. The algorithm consists of two parts: the generator, which creates a new image based on the set, and the discriminator, which aims to differentiate between a human-made image and one created by the generator¹³. The generator learns from its mistakes; when the discriminator is tricked into thinking that a new image is an actual portrait, the portrait results. The algorithm was trained on a set of 15,000 portraits from the online art encyclopedia WikiArt, spanning the 14th to 19th centuries.

The visual arts are another group where there is no case law that would help guide any question of ownership of copyright in the work. Should the programmer or programmers who developed the code or algorithm be the owners of the record? The work itself is not subject to registration due to the human authorship requirement described above.

The US Copyright Office provided initial guidance on this issue. On February 14, 2022, the Copyright Office refused to register an artwork entitled “A recent entry into paradise” which was created entirely with an AI machine called DABUS which stands for “Device for the autonomous priming of unified sensibility”.

The Copyright Office stated that “[c]Copyright law only protects “the fruits of intellectual labor” which “are based on the creative powers of the [human] mind,” noting that he accepted “as a matter of threshold” that “the image was autonomously created by artificial intelligence without any creative input from a human actor”¹⁴. Counsel also cited the Supreme Court case called Burrow-Giles Lithographic c. Sarony in which Justice Miller had limited copyright protection to “artists made of flesh and blood”¹⁵.


The use of artificial intelligence in the arts continues to grow, and as such the legal ramifications of such use, particularly in copyright, are still undetermined. Congress and the courts should provide guidance on the way forward in this area. These guidelines should be consistent with the rest of the world to make copyright registration consistent under the Berne convention.

1. “To promote the progress of science and useful arts, by securing for limited times authors and inventors the exclusive right to their respective writings and discoveries,” U.S. Constitution, Article 1, Section 8, Clause 8.

2. New Oxford American Dictionary, 3rd ed. (New York: Oxford University Press, 2010), sv “Artist”.

3. “Nobody”.

4. 17 USC § 102(a)


6. US Copyright Office, Compendium of US Copyright Office Practices § 306 (3rd ed. 2021) (“The US Copyright Office will register an original work of authorship, provided the work was created by a human being”).



9. Identifier.


11.’s,been%20restored%20using%20artificial%20intelligence.&text=But%20computer%20software %20has%20now trained%20in%20processing%20existing%20information.



14. Copyright Office, correspondence ID 1-3ZPC6C3; SR#1-7100387071, February 14, 2022.

15. Identifier.


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