Ever since Boris Eldagsen revealed that his winning entry in the Sony World Photography Awards titled “The Electrician” was AI-generated, as an artist myself I have been following the discourse that has ensued in the arts community. When I first considered the concept of recognising computer-generated art as legitimate, I thought, to speak candidly, it was totally outrageous. On it’s face, I believe that no matter how realistic it may look, a machine generating an image cannot be considered photography and that it is unfair that an individual who has simply told a machine what to make should be afforded copyright protection. The question whether copyright subsistence and ownership of photographs has become outdated, is a valuable opportunity for me to use “The Electrician” as a case study for the discussion of ownership of AI-generated art and whether, after deep consideration of the topic, I may feel differently.
Photograph
The definition of a photograph given in the Copyright Act is “a product of photography or of a process similar to photography.”1
In Eldagsen’s opinion, generating an image with AI is not the same as photography, saying “one is writing with light, one is writing with prompts.”2 However, curator Deborah Klochko who judged the Sony World Photography Awards suggests that it does fit the definition of photography, which “is radically changing and has been changing since the moment it was first invented.”3
If the Copyright Act’s definition of a photograph is simply “a product of photography,” as a photography major in my Fine Arts degree who has studied the history of photography, I can say that numerous iterations of photography including use of the camera obscura, through to film development and now use of phones of instantly create images supports the notion that ‘drawing with light’ – which is the Greek origin of the word photography – can be interpreted broadly. A traditional definition of photographs is that they’re a reflection of what is ‘real,’ though if social media is a reflection of anything it is that photographs are often as deceiving as they are a reflection of reality. In terms of art, I can give many examples of contemporary photographers such as Cindy Sherman whose photography practice, according to MoMA,“probes the construction of identity” and “plays with the visual and cultural codes of art.”4 In accordance with this, Klochko agrees that “photography from the beginning has appeared truthful but it isn’t. It is capturing a moment in time that no longer exists... it depends on whoever is holding the camera... and their point of view.”5
Ownership
In Australia, photographs are included as ‘artistic works’ in s 10(1) of the Copyright Act 1968 (Cth) and thus are afforded copyright protection under s 326 insofar as they are original and by a human author.
The originality component was considered in IceTV Pty Limited v Nine Network Australia Pty Limited.7 Where previous cases held that originality required “exercise of judgement and discrimination”8 and “substantial labour and expense,”9 the court in IceTV determined that ‘skill and labour’ was not actually required under the act and had previously been given too much weight. Instead, it found that for a work to be considered original it merely requires “independent intellectual effort.”
While it didn’t go into depth, the court in IceTV decided that the requirement for human authorship had been made out, despite the fact the TV guides in question had in part been developed through the use of a computer program. The court gave more substance to its discussion of authorship in Telstra Corp Ltd v Phone Directories Co Pty Ltd10 where it decided that some manual input from humans and their ultimate ability to control the software was not enough to conclude that the phone directory was authored by a human, as the computer’s compilation of data ultimately “shaped and directed the material form.”11 The court made clear that the individual who engages mechanical programs such as the software used to generate the phone directory will not be considered the author of the work.12 The case also considered the originality component, highlighting the ‘intellectual’ nature of the test and interestingly mentioning that no creativity or novelty is required for a work to be considered original.
Where in the UK cases like Cummins v Bond13 had previously made clear that the law is in place to protect the human authors who materialise ideas, the entry of AI generated works into the art scene have prompted the UK to conduct a consultation as part of the National AI Strategy to consider how legislation could be amended to include protection of AI-generated artworks.14
Uncertainty under Australian law is similar to that in the US where the test for copyright protection requires and remains exercise of “intellectual labour.”15 The USCO rejected Steven Thaler’s request for copyright over his AI generated artwork for a second time in 2022 because of their belief that works created by computers lack “any creative input or intervention from a human author.”16 However, USCO did mention that an argument could be made out for the degree of human effort required in directing a computer, which is a line of argument that Thaler had not gone down.
AI artwork generators require users to enter a set of instructions for how the finished artwork should look. In the case of originality and human authorship, the standard set in IceTV and the level of human input discussed in Telsta Directories applied to AI generated artworks would be dependent on the way in which the AI generator was used, the level of intellectual effort exerted by the user, and the prompts not being copied or used to generate a replica of an existing work.
In reflection of this, I used the program ‘Nightcafe’ to create a portrait using one line of prompts stating merely who I wanted in the image and in what style. Without giving much for the program to work with, I wasn’t surprised that the outcome was nothing extraordinary and the zero effort that generation of the artwork required affirmed that not all AI generated work should be copyright protected. However, for Eldagsen’s prize-winning artwork, he entered eleven different elements to inform his vision which included description of the scene, the composition, the colour and the lighting. He stated that achieving the desired and specific outcome required utilization of his photography skills and art history knowledge. His use of prompts was likened by the ABC to “how a painter uses paints and a brush.”17 In this way, it is arguable that meticulous and specific use of prompts “shapes and directs the material form” required for human authorship and utilization of acquired skill and knowledge meets the “independent, intellectual effort” threshold.
The value of exploring creation of artworks like “The Electrician” exemplify that copyright subsistence should continue to be recognised on a case-by-case basis. Where I originally believed the Australian position rightfully excluded legal ownership of AI-generated images, deeper exploration of the legal authorities governing copyright recognition and what it takes for artists like Eldagsen to create AI-generated works have led me to believe that there may be gaps in the Australia’s copyright provisions on the subsistence and ownership of copyright in photographs after all.
1 Copyright Act 1968 (Cth) s 10.
2 Luke Siddham Dundon and Arianna Lucente, ‘Boris Eldagsen turned down a prize for his AI-generated image, and started a whole new conversation about art’, ABC News (online, 15 May 2023) 8. <https://www.abc.net.au/news/2023-05-15/what-is-promptography-artificial-intelligence-boris-eldagsen/102305164>.
3 Ibid 23.
4 Kristen Gaylord, ‘Cindy Sherman’, MoMA (online, 2016) 1 <https://www.moma.org/artists/5392>.
5 (n 2) 27.
6 Copyright Act 1968 (Cth).
7 (2009) 239 CLR 458.
8 Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49.
9 Desktop Marketing System Pty Ltd v Telstra Corp Ltd (2002) 119 FCR 491.
10 [2010] FCAFC 149.
11 Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149 119.
12 Telstra Corp Ltd v Phone Directories Co Pty Ltd [2010] FCAFC 149 59.
13 [1927] 1 Ch 167.
14 Gov.UK, ‘Artificial Intelligence and Intellectual Property: copyright and patents’ (Consultation Outcome, 28 June 2022).
15 Feist Publications, Inc., v. Rural Telephone Service Co (1991) 340 U.S. 499.
16 Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise, United States Copyright Review Board, 14 February 2022.
17 (n 2) 17.