AI-Created Art and the Moral Rights of Authors
The creative abilities of artificial intelligence raise new questions around intellectual property rights. Photo: Pixabay.
By: Helen Catherine Darby
In 2019, University College London students and researchers Anthony Bourached and George Cann founded Oxia Palus, a company that uses artificial intelligence to recreate art that has been “lost to the ages.” Bourached and Cann are far from alone in their production of AI-created art; it is a rapidly growing field of interest. Indeed, just last month Deeep Ltd. hosted an AI art fair in London, displaying over 50 artists’ AI-created works.
Where Oxia Palus differs, however, is that it does not create new works of art but recreates previously-hidden works of deceased artists that have been uncovered by X-ray technology. So far, Oxia Palus has produced color images of twenty lost paintings, as well as a 3D-printed textured canvas of a portrait hidden underneath Italian artist Amedeo Modigliani’s Portrait of a Girl (1917). However, its most recent project, unveiled last month, has proven particularly controversial, raising new questions about copyright infringement and the moral rights of authors and their estates.
In 2010, Pablo Picasso’s masterpiece The Blind Man’s Meal (1903) was X-rayed, revealing that it had been painted over a nude portrait of a crouching woman. (Picasso likely did this reluctantly; he was struggling to afford new canvas during his blue period.) Ten years later, Oxia Palus sought to recreate this hidden portrait through the use of their AI-powered software. The company trained its AI to replicate Picasso’s brushstrokes using an algorithm that analyzed dozens of Picasso’s past works. Then, the AI used the outline of the hidden painting from the 2010 X-ray and added brushstrokes in the style of Picasso. Finally, Oxia Palus printed the work onto canvas using 3D printing technology to give it texture. The result: a finished version of the once-lost Lonesome Crouching Nude.
Other AI developers are also working to reproduce long-lost works of art. A week before Oxia Palus revealed the recreated Lonesome Crouching Nude, researchers at Rutgers University unveiled a project of their own. For the last two years, a team of AI researchers has been working to complete Ludwig van Beethoven’s final masterpiece—Symphony No. 10, which he did not get to finish before his 1827 death. The Rutgers team, co-led by Professor Ahmed Elgammal and Austrian composer Walter Werzowa, trained AI to compose music in Beethoven’s style by analyzing his entire body of work. The AI was then able to extrapolate the sketches, musical notes, and ideas Beethoven had jotted down before his death to complete the symphony.
This kind of work, while fascinating, raises difficult legal and moral questions. Indeed, representatives of Picasso’s estate promptly sent Bourached and Cann a letter demanding that they cancel the public unveiling of the work and cease any further use of Picasso’s works, citing an infringement “of copyright and in particular moral rights.”
Moral Rights
Moral rights refer to noneconomic rights that are personal to the author of a work. These rights seek to preserve the author’s honor, reputation, and relationship to the work. This is in contrast to the economic rights that copyright confers to the author of a work, such as the rights to reproduce the work, distribute copies, prepare derivative works, and publicly display or perform the work. Because moral rights are personal to the author, they cannot be transferred or waived; the author retains these rights even if he no longer has copyright protection. This means that an author can sue for infringement of his moral rights even if he cannot sue for copyright infringement.
The concept of placing the author at the center of the protection system by granting him moral rights originated in Europe. Moral rights became internationally recognized in the Berne Convention of 1886, which was heavily influenced by the French droit d’auteur (“right of the author”). This stands in contrast to the U.S. focus on commercial copyrights and reflects the principal objective of the U.S. intellectual property system in creating public access to beneficial works, rewarding authors being only a secondary concern.
Accordingly, the United States has been slower to adopt and protect moral rights than countries in Europe and the rest of the world. Indeed, the United States did not join the Berne Convention until over 100 years later, in 1989, due primarily to its refusal to recognize moral rights. The United States passed the Visual Artists Rights Act (VARA) in 1990 to achieve compliance with the Berne Convention’s moral rights requirements.
However, VARA provides much narrower protections for moral rights than those afforded authors in European countries. Moral rights in the United States extend only to authors of “visual works,” meaning tangible things like paintings and sculptures—writers, filmmakers, musicians, and other creators of non-physical works do not possess moral rights. Moreover, VARA only recognizes two types of moral rights: the attribution right, or the right to have one’s name associated with one’s work, and the integrity right, or the right to protect one’s work from modification or destruction. Finally, unlike in other countries, U.S. moral rights last only for the life of the author, and the author can waive these rights.
Moral Rights in AI-Created Art
The responses to AI-created art and its copyright implications are likely to highlight the divide between U.S. and European intellectual property systems. Because moral rights are more expansive in Europe, European countries are more likely than the United States to afford protections against AI recreations and completions of authors’ original works.
It is possible to understand the attribution right—the positive right to have one’s name associated with one’s work—as encompassing a corollary negative right not to have one’s name associated with recreated works. Additionally, completion of an unfinished work could be viewed as a modification in violation of the integrity right. Or perhaps authors have a moral right to choose when and in what manner to complete a work—or even to decide whether a work is finished or not. Perhaps authors possess a moral right to decide whether to cover up a work without being questioned.
The European approach to moral rights seems more likely to crack down on the production of AI-created art using any of the above lines of reasoning than does the U.S. system. History shows that the United States has been slow and begrudging to extend moral rights to creators and eventually extended only narrow moral rights. Narrow rights are less flexible and less likely to be adapted to new innovations or unfamiliar circumstances such as AI-created art. Thus, the U.S. system is less likely to facilitate the creative steps necessary to characterize AI-created art as an infringement of moral rights; AI-created art is more likely to face obstacles under the European system.
For this reason, producers of AI-created art should expect different copyright treatment, even amongst the signatories to the Berne Convention. These producers can almost certainly expect the United States to be more permissive of their work.
Helen Catherine Darby is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from the University of Pennsylvania in 2020.