If random photographic snapshots are copyrightable, then so are generative AI creations. Here’s why…

Following on the theme of the UK enabling copyright registration of computer-generated works to “the person by whom the arrangements necessary for the creation of the work are undertaken,” I wanted to lay out a clear simple argument for why I think the US Copyright Office opinion letter on Zarya of the Dawn’s AI-generated comic panels not being eligible for copyright is basically wrong.

Here it is:

1. Photos are copyrightable, including snapshots – even if I didn’t create or arrange by myself the contents of what is depicted in the photograph.
2. So, if I proceed to use a minimum amount of creativity (whatever that is) to capture a depiction of real space, the same basic principle ought to apply if I capture a depiction of a non-physical latent space using an AI-based “idea camera.”
3. It could be even argued that merely clicking the shutter on a camera pointed at a real dog is less effort and less creative an act (or perhaps they are at least equal) than prompting an AI image generator to depict, for example, an invented dog wearing a hat. The difference is merely of the instrument used to make the depiction, which settles something to a fixed form.
4. In the case of a copyrightable snapshot, basically no one tries to argue that, because it is actually the camera’s hardware & software which do the work of image processing and not the human, that the camera is the true “author” of that work. And yet, this is exactly the (I think very wrong) claim made by the USCO about AI-generated works.
5. Lastly, the fuzzy claims about predictability of final images from AI generators doesn’t hold water as a test for any other kind of media. It doesn’t, as I expressed in a recent post, hold water for example for writing a novel, many types of paintings, or films, musical works, etc. It’s rare you as the artist start with a perfect vision of the finished product, and then merely mechanically transcribe it into your chosen medium. Almost all of those, most of the time, are processes of discovery, selection, editing, etc. with a great many steps before you arrive at a finished product you never quite envisioned in the shape of the final product.
6. Further, to tack on one final point: even if I close my eyes, spin around, and randomly point and click my camera to capture images – these are all potentially copyrightable, provided they meet some imagined minimum of creativity/originality. ChatGPT offers one rationale that might prove the minimum threshold has been passed: “This could be based on choices like the time and place of the photograph, or the decision to initiate the snapshot at a particular moment.”
7. Likewise, I think it’s no stretch to say that even the most basic and “boring” AI prompts and their results are always going to be embedded in the context of the lives of the people who created them in concert with these tools. When the circumstances and context (social, personal, political, etc etc) are viewed as constellations (i.e., as a part of their hypercanvas), it will be plain to see where and how the creativity and originality manifest.