141 The Pillar of Originality: Can a Machine be “Original?” In copyright regimes worldwide, “originality” is the sine qua non of protection. In the United States, the landmark Feist Publications v. Rural Telephone Service 1 established that originality requires independent creation plus a “modicum of creativity.” In the European Union, the standard is even more personal: the “author’s own intellectual creation,” reflecting the author’s personality. The Human Requirement The US Copyright Office has remained steadfast: copyright is limited to works created by human beings. This was famously cemented in the “Monkey Selfie 2” case (Naruto v. Slater), where the court ruled that a macaque cannot hold copyright because the statute refers only to human beings. More recently, the Thaler v. Perlmutter 3 ruling regarding the “Creativity Machine” reaffirmed that “human authorship is a bedrock requirement of copyright.” The Prompt as a Creative Vector However, the boundary is shifting. Can a prompt be “original?” If I write a 500-word prompt detailing every shadow, texture, camera lens, and philosophical subtext of an image, have I exercised enough “creative control” to claim the output? The USCO’s decision on the graphic novel Zarya of the Dawn suggests a complex, “fragmented” middle ground: the human (Kristina Kashtanova) owns the copyright in the selection and arrangement of the images and the text—the “creative compilation”—but the individual images themselves, generated by Midjourney, remain uncopyrightable. 1. (Feist Publications, Inc. V. Rural Tel. Serv. Co., 499 US 340 (1991 2. NARUTO V. Slater, 888 F.3d 418 (9th Cir. 2018 3. Thaler v. Perlmutter, 687 F. Supp. 3d 140 (D.D.C. 2023). This creates a complicated copyright landscape. A work is protected as a whole, but its individual parts are in the public domain. For commercial licensing, this is problematic. Imagine a film studio licensing a comic book for a major franchise, only to find that anyone can legally print the individual panels on merchandise because those panels lack a human author. This legal uncertainty could destabilize the entire copyright supply chain in the entertainment industry. It should be mentioned that the legal battle is not just about the output; it is about the input. GenAI models are trained on billions of copyrighted works. This involves the mass ingestion of books, paintings, code, and music without the explicit consent of the original authors. Is the act of “scraping” copyrighted art to train a model a transformative “Fair Use,” or is it “copyright infringement?” But this question is beyond the scope of this short article. Philosophical Underpinnings: Why Protect Anything? Theoretical Justifications As legal experts, we must ask: what is the purpose of copyright? Is it to protect the rights of the authors, or to ensure a steady supply of content for the public? Copyright law aims to balance private and public interests through three main theoretical justifications. The personality theory views creative works as extensions of the author’s identity, deserving natural “We cannot force the AI genie back into the bottle, nor can we allow it to incinerate the livelihoods of millions of human authors.” ISRAEL — ARTIFICIAL INTELLIGENCE
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