Generative Art Has NO Copyright?!

So I recently interviewed Zeneca 33 (an influential NFT thought leader) on the STIMY podcast.

And one of the main takeaways for me was that he was very bullish on generative NFTs.

Which of course, got me thinking:

Does generative art even have any IP/copyright?

Why is this question significant, you might ask?

Because if the answer is no, then generative art is not protected. The work becomes free for all. Questions and conversations about ownership, commercial rights and exclusivity are moot.

But it’s a complex area with so much to unpack!

So let’s dive in.

Disclaimer: This post is for educational and informational purposes only. It is not meant to be a substitute for financial advice. All readers are encouraged to DYOR (do your own research) before arriving at any conclusions based on any content found on this website. STIMY disclaims any responsibility for any claims and/or losses arising from direct and/or indirect use and application of any content herein.

What is Generative Art?

Generative art is a type of art that’s created, in whole or in part, through the use of AI. It is otherwise known as interactive art, generative design or coding art.

In the context of NFTs, generative art features a collaboration between the artist/person and machine/code. The person creates the base layer of art and codes that are then processed by a computer to create the final artwork that NFT buyers see.

Some examples of generative art include the OGs of the NFT Generative Art space, Art Blocks, which describes itself as:

… new generation of art. Hosting projects from today’s most innovative digital artists, our platform combines creative coding with blockchain technology to establish a new paradigm for the creation and ownership of art. Collectors actively participate in realizing an artist’s vision by generating unique algorithmic artworks. This symbiotic relationship and shared experience form the basis of our dynamic community. We invite you to join us as we build a home for the future of generative art.

How Art Blocks works:

Pick a style you like
Pay for the work
An algorithm randomly generates a version of the content
Final product (could be a static image, 3D model or interactive experience) is sent to your Ethereum wallet.

A more common example of generative art would be in the form of PFPs (picture for proof) NFTs. You mint the NFT and the algorithm randomly generates a PFP by mixing and matching existing traits with different rarities.

This article won’t deal with questions like whether generative art is really art because, frankly, I’m not an artist.

But I am interested in the potential copyright issues that arise due to the very nature of generative art.

Copyright in Generative Art NFTs

But to determine whether copyright exists in generative art, we must do a short dive into copyright itself.

What is copyright?

Copyright is a type of intellectual property right you’ll likely find in an NFT (these are the other types of IPRs in an NFT).

Copyright comes into existence automatically when a qualifying person creates a work that is original & tangible (or fixed).

Let’s break down what each of these elements mean.

What constitutes “original”?

The originality requirement only applies to literary, dramatic, musical and artistic works.

It’s a complex topic but in some instances, a ‘sweat of the brow’ test is sufficient, i.e. the mere fact that there was effort or labour involved in creating the work confers copyright upon it.

But sometimes, that isn’t enough.

With computer programs, which would be applicable to NFTs, there may be a higher standard of originality, i.e. there was skill, labour and judgement involved.

What constitutes “tangible”?

Tangible means that the work must be in some physical form. This harkens back to the fundamental nature of what copyright protects: copyright protects the expression of an idea; not the idea itself.

So if you write down the words on a page or in a Microsoft document, then that’s enough to fulfil the tangible requirement.

TL;DR While the threshold for originality is determined on a case-by-case basis, mere copying likely suggests that a piece of work won’t have copyright protection.

Who is a qualifying person?

Generally speaking, a qualifying person refers to someone who is a citizen/has PR in a qualifying country.

E.g. in the UK under section 217 of the Copyright Designs and Patents Act 1988: A qualifying person refers to a citizen or individual habitually resident in a qualifying country, which includes the UK, a member state of the European Economic Community etc.

In Malaysia, the definition for “qualified person” is less broad and refers to a citizen of or a permanent resident in Malaysia (see: Copyright Act 1987). Because Malaysia is a signatory of the Berne Convention, copyrighted work created in Malaysia would be recognised by each contracting member country of the Berne Convention (list of Berne Convention member countries).

Note the use of the word “PERSON” in both Copyright Acts.

Do you have to be human?

Perhaps.

To find an answer, let’s see how different countries have dealt with similar issues in the past.

UK

In the UK (section 9(3)), “author” includes a person who made the necessary arrangements for the creation of artistic work which is computer-generated.

In other words, the person who created the algorithm that generated the final artwork owns the copyright (assuming he’s not an employee/independent contractor with separate legal arrangements).

So that’s encouraging for generative art in the NFT space.

HOWEVER:

This computer-generated provision was added in 1988. AI technology was far less advanced then, so I’d be wary of assuming that AI-generated works would fall under this category
Some argue that this extension of copyright protection is excessive as copyright is meant to reward human effort. Not creativity driven solely by technology.
The concept of computer-generated/AI works is currently under review – see consultation on Artificial Intelligence and Intellectual Property: copyright and patents (published: 29 October 2021).

EU

The EU Software Directive (Directive 91/250/EEC) grants copyright protection to artificially created works provided that the work carries “the imprint of the author’s personality” from the moment it’s created, i.e. the expression of the author’s personal touch and the result of free and creative choices.

It must also be original and in material form.

In short, you must show that the work created was the direct result of human action.

It further implied that AI, as it cannot make free and creative choices on its own, would fail this test

US

The US Copyright Office (Review Board) ruled on 14 February 2022 that a work created entirely by a machine can NOT be protected by copyright.

Instead, copyright law only protects “the fruits of intellectual labour” that are “founded in the creative powers of the [human] mind”.

Here’s a gist of the case:

In 2018, Stephen Thaler filed for copyright registration of a 2D artwork called “A Recent Entrance to Paradise” (“Work”). The Work was “autonomously created by a computer algorithm running on a machine”. It received no creative contribution from a human actor.
In 2019, the Copyright Office denied the registration as it “lacks the human authorship necessary to support a copyright claim”.
Upon reevaluation, the Copyright Office again refused registration, citing that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Stephen “provided no evidence on sufficient creative input or intervention by a human author in the Work”.
In its 2nd reevaluation, the Copyright Office again stated that “copyright only protects ‘the fruits of intellectual labour’ that ‘are founded in the creative powers of the [human] mind”.
In short, the Copyright Office will refuse to register a claim if it determines that a human being did not create the work.
Stephen Thaler also tried to argue that AI can be an author under copyright law because the made for hire doctrine allows for “non-human, artificial persons such as companies” to be authors. This was denied, because:
- 1. The “Creativity Machine” cannot enter into a binding legal contract; and
- 2. The doctrine is about ownership (identity of a work’s owner), and not whether a valid copyright can subsist.

This falls in line with existing US law, where the author must be human for copyright to subsist.

BONUS: Naruto the Macaque

Remember Naruto?

The macaque hit the global headlines when it took a ‘selfie’ using the camera of an English photographer in Indonesia.

The selfie was ruled to be unprotectable by a US court because it was shot by a non-human.

Sorry, Naruto. No copyright protection for you.

US Compendium

Finally, Section 313.2 of the Compendium of U.S. Copyright Office Practices says:

The crucial question is “whether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”

TL;DR Computer-assisted & computer-generated work may be covered by copyright in certain jurisdictions. But if the artwork was generated autonomously by an AI/code (i.e. no human input), then the general stance is probably that the artwork has no copyright.

What kind of copyright subsists in a generative art NFT?

So now we know what elements are required for copyright to exist in the first place.

Assuming it does, what layers of copyright exist in a generative art NFT?

Broadly speaking, we are likely looking at 2 types of copyright:

the artwork; and
the code.

Assuming the code passes the copyright test above (i.e. a tangible and original work by a qualifying person), then the code itself that generates the artwork will likely have copyright.

But what about the artwork itself?

Well, that’s where things get tricky.

So artwork in generative art has no copyright?

Firstly, we can probably break “artwork” down into two parts (i.e. two separate, unique copyright with their own corresponding commercialisation rights/rights of use):

the individual “traits”/attributes
the final artwork generated.

Traits

Let’s take Cryptopunks as an example.

Cryptopunks is an NFT project consisting of 10,000 uniquely generated characters. None are alike, but all of them have unique attributes that carry different levels of rarity, e.g. having a beanie, choker, pilot helmet, tiara, orange side, buck teeth, welding goggles etc (complete list of Cryptopunks attributes).

Each of these traits or attributes would’ve been created by an artist (or artists) with the assistance of computer programs. This makes it a computer-assisted work.

If you’re in a jurisdiction where computer-assisted artistic works are protected, then each of these traits might be protected. I.e. the rainbow beanie itself has its own copyright, the choker has its own copyright etc.

Why do I say “might”?

Because each of these attributes must pass the originality test (see above). You need to show that skill, labour and judgement was involved in the creation of the work. The question of to what extent is up for debate.

Here are some of the thoughts that’d be running through my head:

If the trait took less than 1 minute to create, is that sufficient?
If it’s creating spots, where you’re just adding on 8 grey dots to a Cryptopunk’s features, is there sufficient labour and skill involved?
What about a red mohawk, where it’s essentially just a very small triangle?
Or a clown nose, which is just one red dot?
Et cetera et cetera et cetera (you can see how this discussion could be never ending)

My personal gut feeling is that it would be hard to argue that the individual traits have copyright in and of themselves in these instances.

But if the trait/attribute of another NFT project required a fair amount of skill, labour and judgement to create, then it might have a stronger case.

Final Artwork

Then we come to the final artwork, where all the “traits” come together.

Let’s assume these traits come together to form an entire artwork like a Crytopunk or a Bored Ape.

Like the Cryptopunks above, no 2 Cryptopunks are identical.

But are they really all that different?

Assuming that autonomously computer generated artwork can avail itself of copyright protection, then each Cryptopunk would likely have its own separate copyright protection as a derivative work.

Does this entire discussion even matter?

Well, it depends on who you are and what your intentions are.

If you’re an NFT holder & you purchased the generative artwork to support the artist/just to have in your wallet aka non-commercial reasons, I’d say it doesn’t matter.

BUT if you purchased the generative art because you wanted to have relatively exclusionary rights over that particular NFT (by relative, I’m assuming the licensing terms state that only you the holder and the original NFT artist/founder have rights to use/exploit it), then I’d say it’s a concern.

Here’s a potential scenario:

You purchased Generative Art because you like the art & the NFT founder(s) grant you the “right” to commercialise the NFT artwork up to $100,000. You do so, and print your bags with the NFT artwork on it.

You later realise that a third party is doing the same thing, i.e. selling similar bags with your NFT artwork printed over it.

You sue.

Court finds that there is no copyright in your NFT artwork because the generative art was autonomously generated by a computer; no human creative input involved at all.

You fail in court.

You have no protection.

The third party, and anyone else in the world for that matter, can go on printing bags, teacups, books with your NFT without restriction because no copyright exists.

Of course, this isn’t necessarily the end of the road for you. There are potential trademark/passing off actions to consider (if they should apply), but at least in the case of copyright, it’s probably a dead end.

TL;DR If generative NFTs are your thing, then go for it. Just be aware that even if an NFT project has licensing agreements in place, if copyright doesn’t even exist in the first place, well, what rights do you actually have and can protect? None at all.