In order to analyse the intellectual property dimension of AI-generated art, it's worth distinguishing between the different levels of human and machine artistic input.
- Machine as slave. Where the human uses the machine merely as an assistant as part of an artistic endeavour. In such cases, the output is determined completely by the artist based on deterministic rules. For example, when the artist David Hockney uses an iPad to 'paint' digital images, the machine is a tool to replace paper and brushes.
- Machine as collaborator. Where the artist uses a deep learning system trained by machine learning. The user is not normally able to predict the specific output for any given input. However, the human artist is still in charge of the overall creative endeavour. The human will choose the algorithm and inputs with which to train the machine and/or select the output which comprises the final artwork.
- Machine as artist. Here, the artwork is produced by the machine without any human artistic creativity or authorship. It may be that the machine taught itself and selects which works to display. It appears that this type of AI is currently the domain of science fiction, but it is interesting to consider it from a legal perspective.
Consideration of AI by reference to levels of human/AI input is not unique to the sphere of art. In fact, the levels of human/AI input affect the discussion of all applications of AI. For example, it is standard in the field of autonomous vehicles to consider levels 0-5 of machine/human control. Level 0 being where the car has no autonomous functionality. The responsibility and liability of the driver/user, manufacturer, owner and/or insurer may vary depending on the level under which the vehicle is operating. (Here we surely have a nascent field of law, liability and litigation).
The analogy is apposite in graduating the extent to which the human and the machine are in control of and responsible for the output (whether it be an artwork or autonomous driving).
But there are differences. The goal of art generation is generally to produce a new creative image which was not necessarily precisely predictable and may or may not be constrained by rules. Such is the nature of creativity. In contrast, the goal of the autonomous vehicle, which continually has to process masses of constantly changing and complex data, is to drive safely and predictably from A to B in adherence with the rules of the road, and without surprising or endangering the driver or other road users.
Deep Dream Generator: Razorbill example
One of the machine learning tools which can produce new images from an existing image is the Deep Dream Generator. I uploaded a photograph of a Razorbill on a rock, which I took with my phone on the Isles of Scilly. I randomly selected a style option and some settings. I had to wait a few minutes for the resulting images to appear. See the centre and right hand images below, with the original photo on the left.
To what extent are these two new images the result of my own artistic creativity and/or that of others? Is this a version of Type 2 AI, or another level? Who owns the copyright (if any) for the new works? The same issues generally apply to other types of AI-generated work, such as robo-journalism, robo-movies and robo-music.
