Contents

Wikipedia ➲ The Monkey Selfie Copyright Dispute

What do [AI] Machines & Monkeys have in common?

Copyright to the Seed Text/Prompt Submitted to GPT-3 is Owned by its Authors

More of the Most Famous Copyright Cases Ever

Wikipedia ➲ The Monkey Selfie Copyright Dispute

You can't make this kind of true legal story up.

It is one of the quirks of the legal system that it struggles to deal with events +/or situations that it was never designed or intended to cover.

In this case, the inner workings of the law of Copyright that when there is just the right combination of interested parties, legal uncertainty and money, it tends to generate multiple legal proceedings, the costs of which could have broken the financial and mental well-being of the professional photographer who engineered the taking of the photo (i.e., did a lot more than just supplying the camera) in the first place.

The following overview has been extracted from the Wikipedia article: Monkey Selfie Copyright Dispute.

"Between 2011 and 2018, a series of disputes took place about the copyright status of selfies taken by Celebes crested macaques using equipment belonging to the British wildlife photographer David J. Slater.

The disputes involved Wikimedia Commons and the blog Techdirt, which hosted the images following their publication in newspapers in July 2011 over Slater's objections that he held the copyright, and People for the Ethical Treatment of Animals (PETA), who have argued that the copyright should be assigned to the macaque.

Slater argued that he has a valid copyright claim because he engineered the situation that resulted in the pictures by travelling to Indonesia, befriending a group of wild macaques, and setting up his camera equipment in such a way that a selfie might come about.

The Wikimedia Foundation's 2014 refusal to remove the pictures from its Wikimedia Commons image library was based on the understanding that copyright is held by the creator, that a non-human creator (not being a legal person) cannot hold copyright, and that the images are thus in the public domain."

The cover image for this article (source: Wikipedia) is one of the monkey selfie images in dispute.

What do [AI] Machines & Monkeys have in common?

Fast forward to 2023. We are currently seeing a raft of more of the same kinds of IP-related legal proceedings surrounding both AI's use of copyrighted material and whether or not AI can claim IP rights over its creative output.

This time around the legal disputes involve AI (not Monkeys) but there are still some similarities!

The legal complexities get complicated quickly as often not even the designers of [AI] models know what happens to data and information after into has been submitted to the [AI] for training and use by the model.

It is a black box!

Due to the inherent structure of [AI] large language models, vast amounts of data and information are required to be used to train and improve the quality of their output.

The reality is that to date, the majority of the inputs used appear to have been illegally scrapped from the internet in breach of the copyright of their owners.

Copyright to the Seed Text/Prompt Submitted to GPT-3 is Owned by its Authors

Consider for example, who owns the copyright to the 1st published AI-generated legal review article.

We can conclude that the researchers who drafted the seed text or prompt submitted to GPT-3 to generate the legal review article own the copyright to the seed text/prompt.

The following is the seed text/prompt provided by Alaric and Cocfield to GPT-3 to generate the legal paper.

"While many commentators point to recent advancements in artificial intelligence and machine learning and surmise that it is simply a matter of time before humans are  superseded by technology, others focus on the many reasons why artificial intelligence and machine learning will never be able to supplant humans in various professions.

In this article, we explain why humans will always be better lawyers, drivers, CEOs, presidents, and law professors than artificial intelligence and robots can ever hope to be."

Everything after this point quickly becomes grey mainly due to the fact that an [AI] Machine is the same (legally speaking) as a Monkey.

It is incapable under the law as it stands globally in 2023, of being the owner or inventor of IP as it is not a natural person.

The following has been extracted from an article by Helen McFadzean, Principal of the IP law firm Phillips Ormonde Fitzpatrick:

"In February 2021, IP Australia issued its decision in Stephen L. Thaler [2021] APO 5 addressing the inventorship question. It determined that a patent can only be granted to a person.

An AI machine is not a person, and it is not possible for a person to derive title to an invention devised by a machine from the machine as – the law does not presently recognise the capacity of an artificial intelligence machine to assign property.

So, what do an AI machine and a monkey have in common?

In the monkey selfie copyright dispute, it was found that the monkey was unable to hold copyright in a selfie picture because it was a non-human creator.

Just like that monkey, an AI machine is unable to be named an inventor because it is not a natural person."

In sum, as the law currently stands, both Monkeys & [AI] Machines have no legal basis to make IP-related claims.

This could only be made possible by legislative reform.

More of the Most Famous U.S. Copyright Cases ever

The idea to create this blog article was inspired by the November 2021 Lawyer Monthly article called Three Historical Copyright Disputes by Oliver Sullivan.

Below are extracts from the article about the other 2 famous copyright cases.

Vanilla Ice vs. Queen and David Bowie (1990)

"A famous copyright case came in the wake of the 1990 release of Vanilla Ice’s song Ice Ice Baby. Listeners quickly found that Ice had sampled the bass line of Under Pressure, Queen and David Bowie’s hit single produced in collaboration a decade prior, without crediting the original creators.

Representatives of the artists threatened to bring a copyright infringement claim in retaliation and, in a now infamous defence of his song, Ice argued that the melodies of the two songs were distinct because his work added a note to the end of the sampled riff. He later retracted this statement, claiming that it was intended as a joke. The case was eventually settled out of court for an undisclosed sum, with both Bowie and Queen members receiving songwriting credits on the track.

While largely remembered today for the enduring pop culture legacy it created, the case also sparked discussions around sampling in music, as well as the punitive nature of cases of copyright infringement and whether enough was being done to punish cases of overt plagiarism. It was argued by some that Ice had not adequately compensated Queen and Bowie for the loss of potential credibility caused by his appropriation of the melody, which now inextricably links their work to him without their having been offered a chance to refuse."

Apple vs. Microsoft (1988)

This was a legal dispute over the ownership of one of the first computer operating systems Graphical User Interfaces (GUIs).

"In 1985, Microsoft released its Windows 1.0 operating system, which shared many similarities with the Macintosh. Though Apple initially threatened to sue, the companies were able to come to an agreement wherein Apple licensed Macintosh design elements to Microsoft for use in Windows.

In December 1987, when Windows 2.0 was released – containing even more design elements derived from the Macintosh GUI – Apple forwent threats of legal action and immediately filed suit against Microsoft for copyright infringement.

As the dispute played out, however, the wording of the 1985 license agreement regarding the Macintosh’s visual display elements worked against Apple’s case.

The agreement was discovered to stipulate that “to use these derivative works in present and future software programs.”

This specification of “future” programs – taken to include Windows 2.0 – eventually led to Apple being handed a loss in 1989 when Judge William Schwarzer found that 179 of the 189 visual display elements at issue in Apple’s copyright infringement suit were covered by the license agreement.

The remaining 10, Schwarzer said, were not eligible for copyright protection due to the merger doctrine, which holds that facts and ideas are not copyrightable.

Apple’s attempts to appeal the decision were ended by the Supreme Court in 1995.

The loss was devastating for Apple and a landmark for the computing industry."

Further Reading:‍

Creativity & copyright ➲ Legal Essentials for Screenwriters & Creative Artists [Book Review & Quiz]

What Filmmakers Don’t Know About Copyright Can Kill Their Careers a blog article by Howard Suber

In the Classroom with Creativity and Copyright a blog article by John L. Geiger

Intellectual Property Law ➲ Smart List

Social Sharing Image: Self-portrait by the depicted Macaca nigra female. See article. - Wtop.com (archive; cropped and denoised by uploader), Public Domain

Credits: This blog article was written by James D. Ford Esq., GAICD CIPP/US CC | Attorney-at-Law, Blue Ocean Law Group℠.

State of California Bar Number: 346590

Important Notice:

This blog article is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.