Not Everything Needs Copyright: Lawyers Flip Out That Photos Taken By AI May Be Public Domain

from the calm-down,-guys dept

You may recall the years we’ve spent over the ridiculous monkey selfie story, concerning whether or not there was a copyright in a selfie taken by a monkey (there is not) and if there is (again, there is not) whether it’s owned by the monkey (absolutely not) or the camera owner (still no). But one of the points that we raised was to remind people that not every bit of culture needs to be locked up under copyright. It’s perfectly fine to have new works enter the public domain. So much of the confusion over the whole monkey selfie thing is that so many people have this weird belief that every new piece of content simply must have a copyright. Indeed, during the PETA legal arguments in trying to claim the copyright on behalf of the monkey, they basically took it as given that a copyright existed, and felt the only fight was over who got to hold it: the camera owner or the monkey.

As we mentioned a few times throughout that ordeal, it really appeared that PETA’s lawyers at the hotshot (and formerly respectable) law firm of Irell & Manella had taken on the case to establish some credibility on the issue of non-human-generated works and copyright. There isn’t likely to be a rush of animal selfies (though there just was a pretty damn awesome penguin selfie — no one tell PETA), but there are going to be a whole bunch of questions in the very, very near future concerning copyright and works generated by artificial intelligence. If you look, there are already many, many law review articles, papers, think pieces and such on whether or not AI-generated works deserve copyright, and some of these go back decades (shout out to Pam Samuelson’s prescient 1985 paper: Allocating Ownership Rights in Computer-Generated Works).

But now many of these questions are becoming reality, and some lawyers are freaking out. Case in point: an article in Lexology recently by two Australian lawyers, John Hannebery and Lachlan Sadler, in which they seem quite disturbed about the copyright questions related to the new Clips camera from Google. In case you haven’t heard about it (and I’ll confess this article was the first I’d found out about it), Clips is a tiny camera that you “clip” somewhere while action is happening and it uses AI to try to take a bunch of good pictures. Sounds interesting enough, if it actually works.

But, as these lawyers note, it’s not clear there’s any copyright for users of the device, and there almost certainly isn’t in Australia where they practice:

Under the Australian Copyright Act, subject to certain exceptions, copyright in an artistic work is owned by the author, which, in relation to a photograph, is “the person who took the photograph”. Therefore, as simple as that, the owner of a Clip (or similar product) which takes photos by AI will not own copyright under Australian law, as they are not the person who “took” the photos.

Unfortunately for robots everywhere however, neither will the AI. As you might have noticed in the above quote, it is the person who took the photo who owns the copyright. While “person” is not defined in the Copyright Act, it is defined in the Acts Interpretation Act (which governs the interpretation of legislation), which provides that it includes an individual, body politic, or body corporate but not, by implication, a machine.

Therefore, the answer is that, under Australia law, no-one will own copyright in photos taken by AI. The photos simply will not be protected by copyright in Australia, as they do not have an “author” within the meaning of the Copyright Act. The Australian Federal Court reached a similar conclusion when it ruled that information sheets arranged by a computer program did not attract copyright protection.

A similar analysis almost certainly applies to the US and a bunch of other countries (including Spain and Germany) where the law is pretty clear that non-humans don’t get copyright. As that and other articles note, there are some countries (including New Zealand, India, Hong Kong and the UK) which have specifically updated their copyright laws to include a new form of copyright for computer generated works (it varies, but basically giving the copyright to whichever person was most involved in the process — which opens up a whole different can of worms).

But what struck me about the article by Hannebery and Sadler, is they don’t even stop to consider why we might not want every new work to be covered by copyright. It’s not even up for discussion in their piece. They just insist that the lack of copyright must be a problem and demand that Australia amend its copyright laws to fix it without ever bothering to explain why it’s a problem:

Refusing to afford computer-generated works copyright protection is likely to become more and more problematic, as artificial intelligence develops at a mind-boggling rate and we start seeing artistic works (like paintings, music, and even novels) created by machines.

Eventually, Australian lawmakers will have to address this issue. This may mean adopting an approach similar to that of the UK and New Zealand, whereby copyright ownership is granted to (most likely) the creator/owner of the computer program which authored the work. The alternate approach of granting copyright ownership to computer programs would of course be radical, but is certainly not outside the realm of possibility as technology continues to develop.

Notice how the lack of copyright is declared to be “problematic,” and the only debate, it appears, is between whether the owner of the system should get the copyright, or the programmer of the AI.

But that’s silly. As we wrote all those years ago, not everything needs copyright. Indeed, even for most of the modern world, we didn’t automatically copyright all works of creation until relatively recently. In my case, here in the US, it was still in my lifetime that we assumed most works were in the public domain and only granted copyright to the small percentage that decided to register.

It’s just in the past couple of decades — often driven by special interests who have built entire industries on sucking up copyrights and restricting competition with them — that we’ve reached a world where the idea of content without copyright is somehow “problematic.” But it’s not problematic and it shouldn’t be, and we should get past the brainwashing of the legacy copyright players, and recognize that not everything needs copyright, and AI-generated works most certainly do not.

In that article we wrote years back, there’s a quote from Sherwin Siy explaining why it’s unfortunate that the meaning of the public domain has changed so drastically in just the past few decades:

This is the definition of the public domain?things that are not protected by copyright. We?re used to thinking of the public domain as consisting of things that were in copyright and then aged out of it after a length of time, but that?s just a part of it. There?s also works created by the federal government, and things that simply can?t be protected?like ideas, methods of operation, or discoveries.

But, because legacy copyright interests have been so driven into so many people’s heads that everything must be covered by copyright, and everything must be owned, and everything must be locked down, some people seem unwilling to even consider that the world might not fall apart if some content is never under copyright. As we’ve seen in lots of areas where that’s the case, those industries often thrive and grow more rapidly than those encumbered with legacy protections in the form of copyright.

Hopefully, as more and more AI-generated content exists, we resist the urge to lump it all under an outdated 18th century concept that simply isn’t needed to create “incentives” for a computer to generate new works.

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Comments on “Not Everything Needs Copyright: Lawyers Flip Out That Photos Taken By AI May Be Public Domain”

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120 Comments
hij (profile) says:

Ask the machines

If they think it is such a big problem, then they should ask the copyright “owners.” If the computers doing this feel like they do not need copyright to continue to do their work then there is not a problem. Let the computers decide, and if they are all that smart they likely will choose better lawyers than these yahoos.

Anonymous Coward says:

Re: Re: Re: Ask the machines

With copyright being "Life +70" right now, how do we determine the "lifetime" of a program?

The lifetime of the program is the lifetime of the process. So when you hit X to close the window, you’re closing (killing) the process. Fortunately, it’s not a crime to kill programs. As a practical matter, that would mean most program-owned copyrights run for 70 years + a few hours/days/weeks, depending on how long the job ran.

DannyB (profile) says:

Intelligence Test

Which would do better on an intelligence test? (Or even Turing test)

  1. An AI
  2. An AI that takes pictures
  3. An AI that takes pictures and isn’t upset about lack of copyright
  4. A monkey that takes its own picture
  5. …and isn’t concerned about lack of copyright
  6. …or if monkey has copyright, isn’t concerned about how to exercise those rights to harm the largest number of people possible. (eg, copyright maximalist, aka pigopolist)
  7. Someone who thinks they get he copyright taken by a monkey, because they own the camera the monkey used, and they were there to witness the glorious event.

Which is more sane? Like a stable genius.

Micchael (profile) says:

Re: Re:

The argument for a photograph to have any copyright protection is that there is artistic decisions put into selection of where the camera is pointing, the timing, color and camera settings, etc.

The “Clip” appears to be taking away all of these decisions except where the camera is positioned and when it is turned on.

While it can (and I am sure will) be argued that the remaining decisions are still artistic enough to deserve copyright, it moves the argument quite a bit.

Anonymous Coward says:

Re: Re: Re:2 Re:

Also, I wonder how much fun one could have (assuming lots of money to deal with lawsuits) stealing a camera from someone, taking a picture, giving the camera back

If you want to cause trouble, hang around a tourist area until someone asks you to take their picture. You’ll own the copyright.

Anonymous Coward says:

Re: Re:

>a tiny camera that you “clip” somewhere while action is happening

>I don’t see how this is any different than a photographer setting up a time lapse or other delayed shutter event.

It’s probably a bit smarter than that. I’d imagine it detects common shapes that could be related to “action”, like people and cars, actively senses changes in velocity, then waits for everything to be in frame before taking a snapshot of what’s in front of it.

firebird2110 (profile) says:

Putting aside the general creepiness of the Clips camera (seriously, who buys these things?!) I can actually see a problem with there being no copyright on the photos it takes. If the owner of the camera has no ownership of the photos it produces then what comeback will they have when the inevitable hacking and publiction scandal hits? That’s not to disagree with the main point of the acrticle, just that an automated camera for personal use might need to be treated like any other camera.

tom (profile) says:

Would think pictures taken with the Clips camera would be treated similar to those taken by game cameras. The basic game camera is placed by the owner and takes pictures when its motion detector is triggered. Guess you could consider motion detection as a rather trivial form of AI.

Don’t know if the game camera picture copyright issue is settled. I see some game pics posted with a claim to copyright.

Mike Masnick (profile) says:

Re: Re: Re:

Techdirt has this idea that AI is some magical force that can operate outside the laws of men, when it is merely a software program being run by a human.

It is not a magical force, but the laws in the US are pretty clear that AI created works are not eligible for copyright protection. Don’t just look at me as having this idea: the Copyright Office itself has said so.

See page 17 of the Copyright Compendium here: https://www.copyright.gov/comp3/docs/compendium.pdf

Note: "the Office will not register works produced by a machine or mere mechanical process
that operates randomly or automatically without any creative input or intervention from a human
author."

So, you can hate on Techdirt all you want, but you should at least admit that we’re not the only ones making this argument about what the law says.

And, to be even more direct, we have never argued that AI is outside the law. It’s just outside copyright law, as copyright law has been determined to only apply to works created by humans.

Anonymous Coward says:

Re: Re: Re: Re:

AI is just a buzzword for software. Nearly all modern cameras lack physical controls. Pushing a shutter button runs a bit of software code that instructs the camera to begin recording. No one would think that software that starts a timer, or takes a picture when a smile is detected would render it ineligible for copyright, so why should AI be any different? What about security/dashcam videos that use software to detect movement and other changes in the frame? Should those also be ineligible for copyright?

You are using the term AI generated when you really mean software assisted, which has precedent for copyright eligibility.

Mike Masnick (profile) says:

Re: Re: Re:2 Re:

AI is just a buzzword for software. Nearly all modern cameras lack physical controls. Pushing a shutter button runs a bit of software code that instructs the camera to begin recording. No one would think that software that starts a timer, or takes a picture when a smile is detected would render it ineligible for copyright, so why should AI be any different? What about security/dashcam videos that use software to detect movement and other changes in the frame? Should those also be ineligible for copyright?

The question that copyright compels is what creative choices were made by a human being in creating the work. Pushing a shutter button, even if software-assisted, still has the creative choices being the human’s, and thus copyright is valid.

The problem with this issue — and many more coming up — is when the creative choices on the work in question is basically nil. With Clips, so far, it’s where the camera is hung up. Is that a creative choice? Maybe, but it would be a fairly limited one. But if the camera is making all of the artistic decisions, without the human, then there is no copyright.

So I believe your attempt to reframe this is incorrect as well.

Anonymous Coward says:

Re: Re: Re:3 Re:

With Clips, so far, it’s where the camera is hung up. Is that a creative choice? Maybe, but it would be a fairly limited one.

The copyright statute does not specify that there is a minimum threshold of creative input needed to qualify for registration, only that it must be nonzero. The burden is proving that there is not any human input or interaction, which is a more difficult argument to make because it is an absolute. Since you already conceded there is some creative choice in the Clips case, do you have any hypothetical situation where PD would apply because there is not any human input or intervention?

Anonymous Coward says:

Re: Re: Re:6 Re:

The copyright of the raw footage needs to be considered separately from the edited film. The latter is certainly copyrighted. Also, if you own the only copy of the footage, it has value to anyone who can use it in a larger work, even if it has no copyright attached.

Also, as the paparazzi know, a photograph can have tremendous value if it is available at the right time, and sold to only one news outlet, when they know that other newspaper will use it after it has been published. Indeed the photo drops in value within a day or so of it being splashed all over the front page.

Mike Dunford (profile) says:

Re: Re: Re:5 Re:

The statute (17 USC 102) simply states that “copyright protection subsists…in original works of authorship fixed in any tangible medium of expression.” It does not specify what is required to make a work “original.”

Case law interpreting that statute established both that some creative input on the part of the author is required and that the threshold is very low. Feist Publications, v. Rural Telephone Service, 499 U.S. 340 (1991), is the leading case, but there are many, many others.

Anonymous Coward says:

Re: Re: Re:3 Re:

The question that copyright compels is what creative choices were made by a human being in creating the work.

One could argue that whoever created the algorithm made these choices. They programmed it with the light levels, angles, etc. to look for—meaning it’s Google, not the camera owner, that would get copyright.

Kal Zekdor (profile) says:

Re: Re: Re:4 Re:

That would be like saying the company that builds a camera would own the copyright of any photographs taken with it. AI is simply a tool, we’re a long ways off from any type of Artificial General Intelligence. The operator of the AI has made a creative decision to produce works. It doesn’t really matter how much went into that decision. It could be just turning the AI on. They’ve made a decision to create, regardless of the difficulty of the actual creation, and it follows that they should own the copyright of whatever is created. (Of course, if anyone can make similar quality works simply by pushing a button the value of that copyright goes down, but that’s not necessarily a bad thing.)

This is different than the monkey selfie case. That photo was an accident. If the photographer had intended to give the camera to the monkey in order to take photos I think the case would have ended differently, but, if I’m recalling correctly, the monkey just picked up a camera that happened to be lying around. There’s a huge difference between those scenarios, at least in my mind.

Anonymous Coward says:

Re: Re: Re:5 Re:

AI is simply a tool, we’re a long ways off from any type of Artificial General Intelligence.

That’s exactly our problem. Were it an actual artificial entity making the decisions, the decsion would be easy: no copyright (until, if science fiction is any indication, the AI sues us for human rights). But it’s not; the manufacturer programmed those "creative" decisions. It would be ridiculous to award them a copyright, so the copyright maximalists are likely to try for that soon.

The operator of the AI has made a creative decision to produce works

The simple decision to produce is not enough. There has to be some creative input, however minimal.

That would be like saying the company that builds a camera would own the copyright of any photographs taken with it.

No, because cameras do not generally do anything legally regarded as "creative". They take the picture as commanded by their user, when so commanded, and nothing more. Google’s thing decides when to take the picture; still trivial, though a bit less.

Kal Zekdor (profile) says:

Re: Re: Re:6 Re:

Saying that the creator of a software tool that aids in the creation of a work should own the copyright on that work is no different than saying that the creator of a hardware tool that aids in the creation of a work should own the copyright to that work. The developer of an AI should no more own the rights to works produced with it than the designer of a camera should hold the rights to photos it’s used to produce.

By definition, there is never zero creative input involved in creation. The question is what is the threshold of input required to pass beyond a mere mechanical process. It’s hard to pin that down in any general fashion, as art is inherently subjective.

That said, I’m not sure of the reasoning why works created by mechanical processes aren’t copyrightable… Offhand, it doesn’t seem like that would be a problem. I’m off to do some research.

Mike Dunford (profile) says:

Re: Re: Re: Re:

You’re certainly not the only ones making the argument. However, while the Copyright Office Compendium is taken seriously by courts, it doesn’t have the force of law. Courts can, and have, overridden Copyright Office decisions to not register works in the past. Courts have also overridden Copyright Office decisions to register works.

In the absence of any test of whether the copyright office is correct to hold that works created through a “mere mechanical process” are not copyrightable, I think the most that can be said is that it’s unclear whether the AI is within US copyright law.

That’s particularly true since nobody has applied that copyright office standard to this camera yet – it’s possible that either the company that created the AI or the person setting up the camera will have provided sufficient “creative input” to bring at least some Clips photos under copyright. (I’m doing a post on my own blog with examples; OK to post link when I’m done?)

Also, it’s important to note that other countries with different copyright laws might have different results, particularly (and as the Lexology article you cited points out) those countries that explicitly address computer-generated works in their statutes.

Anonymous Anonymous Coward (profile) says:

Re: Clipped to shirt pocket

Ask the IOC about the TOS printed on the back of their tickets. Alternatively make sure you view, record, commit to memory and follow the ‘Rights’ warnings likely run prior to any ‘legitimate’ video of events. To them, if it happens at, near, around, during, or about the Olympics, it’s theirs, even if it was you who won the event.

Roger Strong (profile) says:

Re: Clipped to shirt pocket

It won’t just be sporting events. There’s space tourism for example.

SpaceX just ran into a law that makes it illegal to put cameras on their second stages and spacecraft without licencing from NOAA. For national security of course. Apparently the footage from the Falcon Heavy’s Starman launch was technically illegal.

Small hand-held cameras are exempt, so NOAA won’t go ballistic when GoPro-toting tourists on Blue Origin and Virgin Galactic spacecraft, er, go ballistic. But if they clamp the GoPro to a window? That’s a paddlin’.

Perhaps an AI-controlled camera would shift the blame.

drewdad (profile) says:

Re: Clipped to shirt pocket

I think you’re conflating two concepts.

Infringement would apply to a copyrighted work. A live performance is not a copyrighted work.

You might be in violation of a contract or terms of service with the venue/performer, if you purchased a ticket that states you’re not allowed to make recordings, but that wouldn’t be infringement.

Also, just because your live stream is not copyrighted doesn’t mean you can’t be infringing someone else’s copyright.

NeghVar (profile) says:

my copyrights

I am not one for filing copyrights or patents. I have the attitude of Nikola Tesla. Every picture I’ve taken, program I’ve written, and website I’ve published has always been marked with Creative Commons. When I was taking courses in website design, part of the instructions for each page is to put a copyright notice at the bottom. I put creative commons. The instructor said I was her first student to ever put CC.

Mike Dunford (profile) says:

Re: my copyrights

Under current law, you still have copyright in everything that you’ve created, even when you’ve chosen to release it under CC. The CC doesn’t replace that copyright; it’s a license for use that anyone can accept.

I know that sounds like pedantry (and it sort of is). But if we’re going to talk about issues in copyight, the whole “copyright arises automatically at the instant of creation” thing should probably be on the list.

tp (profile) says:

Copyright ownership is clear

Copyright for pictures is clearly assigned to whoever operated the camera/pressed the record button/who was available when the actual picture taking operation took place. This always requires humans who control the camera equipment.

Under no circumstances would these pictures be in public domain.

AI is no different. If you buy AI software, install it to your computer, execute the command that activates the AI, and your AI takes the picture – then copyright ownership is obviously in the person who activated the AI.

Long running tasks like traffic cameras the situation is complicated, but this is why it’s strictly limited who is allowed to do autmatic surveilance in the society. Installing long running/recording camera equipment is not allowed in many places — installing it to your home could be considered secret recording which has it’s own laws / copyright might not be applicable in those situations.

The copyright ownership assignment assumes that the person who gets copyright ownership is present in the situation where picture is being taken. Monkey taking the camera, moving it to other place, snapping some pictures without human involvement is so rare that practically it does not happen at all in our world.

Any idea that pictures do not have copyrights associated with it, is completely broken.

NeghVar (profile) says:

Re: Re: Copyright ownership is clear

Back then money/ currency was not as big of an idol as it is now. More of human history’s greatest creative minds sought recognition for their works. They were proud of their works and wanted the world to see how wonderous there culture and society was. I doubt profiting from their works was a priority.

Anonymous Coward says:

Re: Re: Re: Copyright ownership is clear

These days, most creative minds seek to have their works seen and appreciated. It is the non creative minds that inhabit the offices of publishers, studios, labels and TV stations who demand ownership and payment for created works.

Creators sometime seek support so that they dedicate more time to creating new works, other do it for other reasons, like the joy of creating works that other enjoy. Others because it make them part of a community sharing their ideas, knowledge, successes and failures.

The Wanderer (profile) says:

Re: Copyright ownership is clear

When I create something (e.g. take a picture), the law simultaneously creates a copyright to link me with that thing.

When something which is not a person creates something, the law takes no such action, and no copyright is created.

The copyright is separate from the created thing, and must itself be created separately – and although copyright maximalists hav been largely successful in getting that separate creation to occur automatically in many cases, there are still cases where it does not, and “creation by something which is neither a person nor an association of people” is one of the major exceptions.

Mike Dunford (profile) says:

Re: Copyright ownership is clear

Copyright for pictures is not clearly assigned to whoever operated the camera. It’s assigned to whoever made the artistic decisions about subject, framing, lighting, etc. Until now, that’s basically been synonymous with “operated the camera.”

The AI complicates that picture. With clips, the AI, and not the human, makes many of the artistic decisions. Clearly, the courts have yet to rule on what (if any) effect that will have, but it’s very much an open issue.

Jeremy Lyman (profile) says:

Let's talk AI

In my estimation, this case isn’t the example which should be used to determine whether “AI” can hold a copyright. Since the camera is attached to a wearer, thousands of images are “captured” and the software is simply evaluating whether an image is worth retaining. It has no involvement in framing or composing the picture, only whether or not to purge it from memory.

What we’re really talking about is whether people or companies which have no copyright interest should be able to claim a copyright where there was previously none. If this was really about “artificial intelligence” the conversation would be about sentience, person-hood, and the ownership rights of synthetic persons. These advocates aren’t saying programs should have rights, they’re just making an intellectual property grab for themselves.

Anonymous Anonymous Coward (profile) says:

Re: Let's talk AI

You bring up an interesting question. If AI takes some pictures, then I, the owner of that device, reviews the pictures and purge from memory those pictures I do not want (a.k.a. delete) (for whatever endeavor I was intent upon at that time) I would then be destroying the intellectual property of someone else?

The AI creator did not have control of the camera at the times those pictures were taken. It was not their property in which the images were stored. How would the AI creator even know that such a picture ever existed? They can’t.

Jeremy Lyman (profile) says:

Re: Re: Let's talk AI

Owning the camera doesn’t enter into it. If I lend you my camera and you take some pictures which I then delete, then I’m destroying your intellectual property. But that’s because you’re a person who decided to create something.

I think a big confusing factor in all this is people’s personification of current AI tech. Right now all AI means is that we don’t really know how the algorithms doing a task work. It’s easier for us to imagine the software “deciding” to do something but it’s as pre-determined as any intentionally (albeit very advanced) designed algorithm.

So take the camera’s “person-hood” out of the equation and ask “if a developer wrote an advanced app that framed, focused, metered, and took beautiful photos, does that programmer own the copyright on those photos? Does the person who bought the app?”

Mike Dunford (profile) says:

Missing the main issue

At least from the perspective of this lawyer, the freak-out isn’t over the possibility that the photos are public domain. It’s over the certainty that both the copyright ownership and copyright status of the photos taken with this camera are entirely uncertain.

Some, all, or none of the photos taken might be covered by copyright. In some, all, or no cases the copyright might be owned by the camera user. In some, all, or no cases the copyright might be owned by Google. In some, all, or no cases the copyright might be owned by both the camera owner and Google.

And the answers to those questions will very likely be diferent from one country to the next.

Christenson says:

On Being Sane....

Copyright, in (US Constitutional) theory, is supposed to incentivize progress in science and the arts by granting authors exclusive rights…. (and assuming those rights are meaningful in the presence of the world’s greatest copying machine, the internet, and easy spying via the iOT)

I think the problem starts with granting copyright to anything that “just happens” to show up as output on my camera machine…including the shot of the ground I accidentally took as I fumbled it out of my pocket.

There has to be some human creativity in the work…see Feist vs Rural Telephone on that one, a list of facts won’t do. So under that argument, game and security cam footage isn’t copyrightable. Nor should this “clip” camera output be copyrightable, per se. However, consider the “Blair Witch Project” movie, which could have easily been made up of such output, and definitely deserves a copyright.

Boojum (profile) says:

Re: On Being Sane....

Also in this argument, a timelapse photo or video of a flower is not copyrightable, and video of animals in the wilderness from tree mounted cameras is not copyrightable. Only the final creative expression of the documentary on PBS is copyrightable and anyone should be able to pull the timelapse or animal video out and use it for whatever they want. I’m not sure I agree with that interpretation. While the goal of the laws are important, there is no perfect implementation. We end up drawing lines where technology and creativity overlap.

Boojum (profile) says:

Interesting on so many levels

There are so many interesting things in this concept to dig into… as to where to draw the line as to who took a picture.
1. Photographer pushes a button on the camera and ZZT it took a picture, almost no doubt he took the picture.
2. PHotographer sets a timer on the camera to take a single picture or a timelapse picture. He is not actively pushing the button, did he take the picture or did the computer in the camera take the picture?
3. Photographer sets up a laser trigger in the woods to take a picture with a camera on a branch when something walks through the invisible beam, Did he take the picture or did the animal walking down the path take the picture?
4. Photographer sets up a motion activated video camera to capture footage for a documentary in the woods… did he take the picture or did the person moving about take the picture? Has he lost his copyright to these images from his movie because the computer in the camera took the picture?
5. And now we get to this device. The photographer mounts the little camera but the computer decides when to take the picture?
I can see a definite case where if no one has the copyright to the AI triggered picture, then no one has the copyright to any triggered picture on the grounds that the photographer didn’t trigger it.

Anonymous Coward says:

Re: Interesting on so many levels

Legally an AI trigger is not much different than any other form of software trigger. The photographer initiates the recording and a software program is executed, making a recording when the parameters in its code are met.

Copyright fringe groups like the lawyers and Techdirt are making the argument that AI is somehow a novel development in the world of software that existing copyright laws cannot apply.

In both cases, the groups want to reinterpret existing law to further their own agenda.

To be sure, the merits of copyright are worth debating but that debate is orthogonal to the applicability of copyright in this case.

Anonymous Coward says:

Re: Re: Interesting on so many levels

Which brings up a different interesting question. If the trigger doesn’t matter, then having a monkey trigger a picture by pushing a button is no different than a monkey triggering a picture by walking through a light beam… or a motion sensor. Wouldn’t the copyright then belong to the photographer who placed the camera and it’s trigger in a position to be triggered? If that is the case, then the infamous smiling monkey picture should be copyrighted to the photographer who left his camera there, if the trigger method doesn’t matter.

Anonymous Coward says:

Re: Re: Re: Interesting on so many levels

If the trigger doesn’t matter, then having a monkey trigger a picture by pushing a button is no different than a monkey triggering a picture by walking through a light beam.

There is a difference, as with the light beam, the photographer had the intent to take a photograph, while carelessly leaving a camera where monkey can pick it up lacks any intent to take a photograph.

Boojum (profile) says:

Re: Re: Re:2 Interesting on so many levels

So this would imply that the intent of the photographer matters, not the actual trigger. So if a photographer left a camera in a cage of monkeys with the intention that one of them would trigger a usable picture, then the photographer would have the copyright? And if he didn’t intend for a picture to be taken, there is no copyright on the picture?

Boojum (profile) says:

Re: Re: Re:4 Interesting on so many levels

While the photographer gives up control for a certain amount of time, he regains control and then begins cropping, sharpening, blurring, saturating, and all the OTHER things that photographers do with a picture. Pretty much no photographer today snaps a picture and then sends it out as is. Even without photoshop, there are LOTS of settings inside the camera that the monkey would almost certainly never change that would affect the outcome.
Honestly, I agree with you though. I think that determining copyright on the picture will involve the amount of creativity the court feels the photographer put into it, the same as determining if a work is derivative or not… but that will be on a case by case basis and be VERY subjective. It would not provide photographers with an objective standard to guide their work.

Anonymous Coward says:

Re: Re: Re:6 Interesting on so many levels

The question of copyright in the original does not come up if it is never published and destroyed after its ceases to be useful to the photographer.

Also worth noting, the actions of developing and printing a film never been used to give the lab that carried out the process a copyright, and the technicians certainly use there judgment as to exposure setting for the print. That would support an argument that more than just dealing with digital development is required to create a copyrightable derivative work.

Boojum (profile) says:

Re: Re: Re:6 Removing RE:'s :D

Since Photographer control was brought up, that’s what I was addressing. I can see your case for it to be a derivative work, but how much “control” that the photographer gives up removes copyright from their work? We have one side where the photographer controls everything (sets ISO, sets exposure, sets shutter speed, sets focus, arranges blocking, triggers picture), on the other side, technology provides a way to take each of those controls away from the photographer.
It will be really interesting to see which way this goes if it ever comes up in a court case. As an amateur astrophotography buff I often use automation to guide and stack photo’s. I have a guided mount and set up my camera to take a picture every X seconds (the less you touch the camera the more table your pictures will be.) When I have a hundred pictures taken, I can stack them and get some NICE pictures of stellar objects.
If copyright is determined by creative control of the camera at the time the picture is taken, then I must admit there is very little control by me while pictures are being taken and so I would have no copyright on the original pictures, even though spent several hours at night taking them.
Mind you, no copyright is not the same as being forced to provide access. No one has ACCESS to those original frames unless I provide it… Ownership does give some benefit to prevent others from using those frames.

Mike Dunford (profile) says:

Re: Re: Re:7 Removing RE:'s :D

The key difference in the Google Clips vs post-processing using software comparison, at least from what I can see, is that when you took the photo that is being post-processed, there’s no doubt that you own the copyright in the original frames. With Clips, it’s ownership/ownability of the original frames that’s in doubt.

A second difference is that at least arguably you, and not the software, are making all the creative decisions in post-processing. The software is mechanistically carrying out your intent to (e.g.) stack frames to get the best color and lighting with the minimum motion blur.

Boojum (profile) says:

Re: Re: Re:8 Removing RE:'s :D

If the suggestion that pictures taken where the camera is not under the direct control of the photographer (camera mounted on wall, new google iclip, etc..) have no copyright, then I’m not sure why the raw footage of Andromeda would have a copyright. Conversly, if my raw footage of Andromeda has copyright, I’m not sure why automated picture taking of OTHER sorts wouldn’t have copyright the photographer.

This is a common problem as new technology comes online. People, including myself, would like an objective standard for how the law should be applied. A poorly thought out objective standard has all sorts of unintended consequences. I don’t think there is a large body of caselaw on automated photography. It is, normally, assumed that the owner/operator of the camera who arranges for the photo to be taken has the copyright, regardless of how it is triggered. We are discussing an edge case, however. How is having a camera triggered by software installed that determines how good a picture will be different than one which autofocuses, autoshutters, autoaperature, then records constantly? How is it different from leaving your camera in a cage full of monkeys and “hoping” for a good shot? IS there any real difference in any of these possibilities?

These are all topics that I will be very interested in seeing work out, both in law and in the courts.

Mike Dunford (profile) says:

Re: Re: Re:9 Removing RE:'s

In jurisprudence, the “edge cases” are often referred to as “problems of the penumbra.” Lawyers, and especially academic ones, love the grey of the penumbra because, as my contracts prof said, “that’s where the lawyering happens.”

You are correct that there are few automated photo cases, which makes this camera even more of an uncertain area than it would be if we had more.

As far as your photos of Andromeda go, you’re using your telescope as a lens. You’ve found the object (possibly with computer assist), placed it in the frame (probably fine-tuning any computer automation of the original placement), determined (via software) how many frames of what duration to take, and so on. The standard for originality needed to support copyright in photos is so low that there’s no doubt in my mind that you’ve cleared it. (Your copyright in the finished image is “thin” – you can’t stop others from independently taking virtually identical images – but it’s there.)

I’m finishing a blog post that uses examples of Google Clips photos to show where the human operator is likely to be at least co-owner (with Google) of copyright in the images. If it’s not considered spamming, I’ll try to post the link when I’m done. (Probably another 45-60 minutes.)

Boojum (profile) says:

Re: Re: Re:10 I'd like to see that blog post

Astronomy aside, as far as I know taking pictures of something in public view (such as a building or the night sky) confers copyright to the image, but does not prevent others from taking similar pictures of the object. I could be mistaken on that, but I seem to remember several lawsuits of public structures and landmarks were deemed to not violate the copyright of the original photographer even though they were a similar angle and blocking. This means that a person can take a picture of Halfdome and own the copyright to THAT picture.. and that someone else can come along and take a very similar picture and own the copyright to THAT picture… and so forth.

Mike Dunford (profile) says:

Re: Re: Re:11 I'd like to see that blog post

I put the post in the URL box.

You’re absolutely right about copyright not previenting others from taking similar pictures. Your picture of Andromeda is protected. The idea of taking a picture of Andromeda is not, even if it becomes as detailed an idea as “taking a picture of Andromeda on such-and-such a night, through an 8″ Schmidt-Cassegrain.”

And the same does apply to other subjects, including buildings. I used a photo I took looking up from under the center of the Eiffel Tower as an example, but there are many others.

Tech 1337 (profile) says:

Algorithmic art

Considering a different, extreme case, that of deterministic algorithmically-generated artworks (e.g. fractal art), I can see an argument that all the creativity is in the algorithms, and so the owner/operator would have no claim to copyright in the resulting images, whereas the programmer might have some claim. If I create a program then open source it, many people around the world could use it to generate identical artworks, but those people can’t all have copyright to those same artworks when the source is ultimately the same program and the same algorithms. So I can’t see how an owner or operator of a program can hold copyright unless there was some creativity added that makes their results distinct.

In the case of Google Clips, the operators do choose different locations to place the camera, but that seems very thin (creatively-speaking) compared with the decision-making algorithms used onboard the camera. So it seems Google would have a stronger claim to copyright (if any exists at all) than the owner or operator.

Crazy Canuck says:

Technically with cameras you never actually take the picture either. You hit a button and the camera mechanisms do their thing to activate the flash, open the shutter, advance the film, etc. But we consider that as the human is taking the picture because they decided to hit that button when they did. Digital cameras do even more work, they can decide how to focus the shot, decide if it needs a flash or not, adjust shutter speed, etc. Again, we give the copyright to the human that pressed the button.

Now take a time delayed photo, you set up the camera, set the timer, and run to get into the picture. Again the camera did all the work and took the picture when the human told it to. Again, people would argue the person that setup the camera to take the photo and activated the timer is the one that owns the copyright.

So now we have a camera that is even more autonomous. It takes pictures when it’s programming tells it to. But, it doesn’t do this all on it’s own. A human still had to setup the camera (clip it to something), turn it on, and afterwards retrieve the camera and extract the photos. How is this that much different than setting a camera to take a photo on a delay timer? It’s just a little smarter using more variables than just time. It’s not self aware, it’s just doing what it’s programmed to do and the human turned it on and told it to follow that code. If I setup a time-delayed photo and had the timer variable tied to a random number generator, does that negate my copyright in the photo? What if I set it up to an altimeter and told it to take a photo every 100m change in elevation? Or every time it senses motion to take a photo? I think most would agree it’s still my copyright as I told it to take those pictures when it did, just like a time-delayed shot. So why is it different if I make the process more complicated with extra steps?

Mike Dunford (profile) says:

Re: Re:

Essentially, the fewer the number of creative choices made by the camera owner, the weaker the argument for copyright.

In the case of clips, you are deciding where to put the camera; the camera does literally everything else, including deciding if and when to take the pictures. Depending on how much effort was put into the framing when the camera was set up, there might be enough to support copyright, but it’s going to depend on the specific context.

In other words, you might have copyright if you used the live view on the phone to adjust the camera when placing it, but you might not if you just turn it on and put it down in the general area you want.

And, yes, that’s an absurd result. That’s what happens sometimes when laws that got their last major redesign when Xerox and 8-tracks were the new, cutting-edge threats to traditional content distribution get applied to radically different technologies.

Som Karamchetty says:

AI Copyright and responsibility

This could lead to a dangerous argument. An autonomous vehicle causing an accident, or an armed drone firing at a person cannot be responsible if this logic is extended. Will the person at the end of the chain or the owner, or the programmer/designer have ownership and responsibility?

Anonymous Coward says:

Re: AI Copyright and responsibility

Just because there is no copyright in the photographs will not protect if such devices for illegal purposes. If say you placed such a device on an ex partners car to find out their new partner; “but there is no copyright in the images” is not going to get you off of a stalking charge, as the copyright status of the images is not relevant.

Mike Masnick (profile) says:

Re: AI Copyright and responsibility

This could lead to a dangerous argument. An autonomous vehicle causing an accident, or an armed drone firing at a person cannot be responsible if this logic is extended. Will the person at the end of the chain or the owner, or the programmer/designer have ownership and responsibility?

Nah. It doesn’t impact those other scenarios (though there are other legal questions around them). This is specific to copyright, and the point that copyright only is granted to a human author. The other scenarios all involve different laws.

Anonymous Coward says:

At some level this thing has to just be taking video and the using the algorithm to decide which frame to keep. In which case it’s not AI taking the photo, it’s AI deciding which frame to delete/not save. The camera owner sets up the shot places the camera and activated the system. I see this as no different than if someone placed a video camera in a stationary location or used an intervalometer.

The Wanderer (profile) says:

Re: Re: Re:

(Nit: “copyrighted”, or “under copyright”, or “covered by copyright”.

The only thing that is literally copyright is copyright itself.)

That’s a very interesting question; I can see arguments being made in both directions. If there have been any court cases on that point, I’d be interested to learn of them. (A quick Google search on naive terms didn’t find anything that seems relevant.)

Wendy Cockcroft (user link) says:

Re: Re: Re: Re:

Thanks for the nitpick: that’s how I learn. 🙂

I eagerly await the first copyright infringement lawsuit over the unauthorised use of CCTV footage. Mike is right: the culture of “Everything must be owned by someone” needs to end. And honestly, I’d stop siding with the “End copyright altogether” crowd if registration was mandatory because automatic copyrighting causes more problems than it solves.

Dave Cortright (profile) says:

Plausible copyright-ability

I own a Clips camera, and so far I really like it. Hook it up to a drone with facial targeting and I can get a documentary of important moments in my life. The selfie copter is undoubtedly just a few years away.

But to the point, there is a manual “take photo” button in the Clips app. Of course if the picture is of your with your hands free, that might be a hard sell. But I suppose you could be using your big toe. Or it could be someone else out of frame taking the picture (but then of course they own the copyright).

And if you are going to go that far, why do you even have to admit that it was taken with a Clips camera? Just say it was with a point and shoot on a timer and be done with it.

Yes I know that this all involves lying, but for the people who really care so much about copyright, I’m sure they can come up with some adequate rationalizations on why this is for The Greater Good©

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