Developments to artificial intelligence (AI) algorithms have made the output of their work indistinguishable from human creations. Considering these technological advances, it has been increasingly difficult to determine who should receive copyright privileges for artwork generated by AI. This paper will attempt to educate the reader on current AI technology and existing copyright law for art. Additionally, it will critically discuss why AI generated art should be seen as ‘original’, whilst also substantiating the claim that AI is as a tool rather than an author and assert that the author of AI generated work is in fact the individual with most control in the process. Lastly, it will look to international legislature to inform how the CDPA should be revised to accommodate the rapidly changing industry of AI.
With particular reference to conceptual artworks and art installations, the extent to which particular types of contemporary artworks can be protected from unauthorized plagiarism in accordance with English copyright law is for the most part hazy.
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For the most part the blame for this can be awarded to the United Kingdom’s Copyright, Designs and Patents Act 1988. This is due to the fact that general protection for artistic works is not awarded. This is opposite to its French counterpart. In actual fact, the act oppositely states that in order to be awarded protection it is imperative for ‘artistic works’ to align with certain categories. These categories include, ‘graphic work’, ‘painting’, ‘sculpture’ and ‘photography’, otherwise known as works of ‘artistic craftsmanship’. Moreover, it is a requirement for artistic works to be ‘original’. What this means is that the work originates from the artist in question. However, they are explicitly not to be judged by their ‘artistic quality’ (with artistic craftsmanship works being an exception).
In accordance with English law, works of ‘sculpture’ and ‘artistic craftsmanship’ are the only categories are the only categories that are able to be awarded protection, with reference to artworks that have any involvement with or are made with the basis of three-dimensional objects. Despite this the questions still stand of, to what extent are the boundaries able to stretch whilst staying within the confines of the law? Would artworks like Carl André's floor based, rectangular construction of 120 fire bricks, ‘Equivalent VIII’ (1966), or in this case Tracey’s Bed (1998) consisting of the artist's unmade bed, be awarded protection from English courts? With regard to them being innovative and controversial.
Through the use of the well renowned case of Lucas v Ainsworth (2008) EWHC 1878 (Ch), we will be able to extrapolate the method by which courts will approach this issue. In addition to this there is the possibility that it may give light to very important developments in modern and contemporary art, and illuminate some insights as to whether Tracy’s Bed would be worthy of copyright or not.
Continuingly, the case of Lucas v Ainsworth had to do with copying and production of various props that were used in the widely acclaimed film ‘Star Wars’. Ainsworth was mainly concerned with (our particular focus) the helmets of the ‘Stormtroopers’ which were extremely popular and memorable. This could be awarded to the white plastic armor that can be seen in the film. The person (who was also the claimant) was the owner of the intellectual property rights that are to be associated with the film, George Lucas (also the film’s director). Through the use of his production company which he also controls – Lucas Films. On the defendant’s side we had Mr. Ainsworth, who worked on the film, even giving his assistance with design and production of the Stormtroopers costumes, who also happened to be a prop designer. Post working on the film, Mr. Ainsworth proceeded to open a business where he would sell replicas of the costumes, he helped design and produce by way of the internet. In order to stop this from continuing Lucas films filed a court order and damages in the United States.
Furthermore, the judge, Mr. Justice Mann, was giving the pressure and responsibility of establishing the issues of whether the helmets and toy models of the Stormtroopers are bale to be awarded protection in accordance with England copyright law as works of ‘sculpture’ or ‘artistic craftsmanship’. In addition to this he will also have to deal with other auxiliary issues such as passing off. One of the processes will be to examine the boundaries and relationship between laws of copyright and design. In accordance with section 51 of the Act, “anything other than an artistic work or a typeface”, for example, a product that is considered to be mass produced or industrial, from a design model or document in not open for infringement under copyright.
What is the subject of copyright protection? We can attempt to extrapolate a definition for sculpture from the New Encyclopaedia Britannica. There, we can find a definition from Lucas, Mann J. There are two parts of said definition which will be helpful in this discussion. These being “the scope of the term is much wider in the second half of the 20th century than it was two or three decades ago, and in the present fluid state of the arts, nobody can predict what its future extensions are likely to be” and a sculpture not being a “fixed term that applies to a permanently circumscribed category of objects or set of activities”. The term ‘sculpture' can therefore encompass “non-representational” three-dimensional works of art, and can no longer simply be “identified with any special materials or techniques”.
When looking into what constitutes 'sculpture' in accordance with Article 4 (1) of the Act, we may find that there is no sole definition. Instead, this section states that 'sculpture' contains casts or models created for 'sculpture' purposes. Going down the case law route you will find a mixed bag when attempting to establish the relationship between ‘sculpture' and utilitarian artefacts in previous English copyright case law. For example, in the case of Breville Europe Plc v Thorn EMI Domestic Appliances Ltd (1995) FSR 77 it was held by Falconer J. that, plastic shapes in a sandwich toaster could be protected as ‘sculpture'. In contradiction, there is the outcome of the case of Metix UK v G.H. Maughan (1997) FSR where, Laddie J. held that the maker “must be concerned with shape and appearance rather than just with achieving a precise functional effect” (this case had to do with molds for functional cartridges).
Additionally, in this case it was stated by the judge that “the process of fabrication is relevant, but not determinative”. Keeping in mind that in the sector of art the definitions of ‘sculpture’ and ‘art’ itself, tend to be predominately subjective. This is important to recognize as in this case, the judge makes us aware of the fact that the before you begin a legal analysis of the terms ‘art’ and ‘sculpture’ you must start by establishing artistic purpose. From this, when looking from the perspective of contemporary art, we must make use of the process of Mann J.
Furthermore, for the purposes of copyright, there was a list of factors that were set out by the judge. These factors are to be utilized when attempting to establish if an object is indeed a work of sculpture. The factors being: “having regard to the normal use of the word ‘sculpture'”; “paying attention to what one would normally expect to find in art galleries described as ‘sculpture'”; “the creation of a three-dimensional object of ‘visual appeal'”; and “the artistic purpose of the creator”. The most significant of these factors suggested by the judge must be the criteria that is last on the list. We will find an example when we look into Carl Andre's Equivalent VIII (1966). A case where it was heavily weighed on by the judge that “pile of bricks, temporarily on display at the Tate Modern for 2 weeks, is plainly capable of being a sculpture”, however at the same time “the identical pile of bricks dumped at the end of my driveway for 2 weeks preparatory to a building project is plainly not”. He ended off by giving his reason for this thorough consideration. This being that “one is created by the hand of an artist, for artistic purposes, and the other is created by a builder, for building purposes”.
Thus, in accordance with English copyright law, despite their medium, there is a distinct increase of three-dimensional works of art including objects that have been found to video installations, that will almost one hundred percent be awarded protection as ‘works’. This is a result of the approach set out in Mann J. Said works ‘artistic purpose’ will be clearly extrapolated from their institutional context. Not only is this good for the inclusion of Tracy’s Bed. But in addition, the use of this approach may give way to works where the work is blatantly not fabricated by the artist. For example, Marcel Duchamp's famous readymade consisting of an inverted urinal, signed by the artist, ‘Fountain’ (1917), would have to rely on the requirement of the artwork being fabricated by the artist being relaxed.
Moreover, it may be found interesting that it was held by the judge that the original Stormtrooper helmet itself was not to be considered a sculpture. Instead, they are to be considered a “mixture of costume and prop”. Despite the fact that these are the same from which Mr. Ainsworth copied his replicas. Due to the fact that the ‘primary function’ of the helmet is ‘utilitarian’ and the fact that the necessary qualities of ‘artistic purpose’ were missed, the judge held that said helmet cannot be considered a sculpture. Additionally, it was also held by Mann J. that due to their if not sole, primary purpose being to be played with (normally by children) the toy Stormtroopers that were also copied by Mr. Ainsworth are also not sculptures. Giving reference to the New Zealand authority of Bonz Group v Cooke (1994). In this case it was held that even though a craftsman is someone who “makes something in a skillful way and takes justified pride in their workmanship” and at the same time an “artist is a person with creative ability who produces something which has aesthetic appeal”. Therefore, it comes to no surprise that the judge had no consideration of ‘artistic craftsmanship’ for the helmet and toys to be works of. The Stormtrooper toys and helmets thus cannot be seen as works of artistic craftsmanship due to the fact that the copied toys and helmets had not been created with aesthetic appeal in mind as a purpose.
Traditionally, copyright law has low-level requirements of originality. Thus, we are still questioning whether the judge’s analysis of ‘artistic purpose’ is fully in alignment with these requirements. Especially, the statement that all artistic works, ‘irrespective of artistic quality’ must be analyzed. Still, we can infer that the consequences of the decision made by the judge are inconsequential, as the world of contemporary art has widely benefitted due to contemporary artistic works such as Tracy’s Bed being awarded recognition and protection from English copyright law.
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