While artificial intelligence represents a significant technological advancement in various fields, it’s still unclear what role it will play in the future of artistic expression. Some believe AI should be embraced wholesale while others worry that the technology could subvert and overtake human creativity.
Many novelists have drawn a line in the sand by suing OpenAI, claiming that their copyrighted material has been used to train Large Language Models — deep learning models that allow generative AI to respond to input prompts in human language.
One of the most well-known forms of generative AI is OpenAI’s ChatGPT.
A report published in February stated that a California judge had dismissed four of the six claims made in the lawsuit. Federal judge Araceli Martinez-Olguin tossed claims of vicarious infringement, negligence under the unfair competition law, unjust enrichment, and the claim that OpenAI had removed or altered copyright management information.
However, the authors’ claim of direct infringement remains active.
I asked Peter Gietl — the Managing Editor at RETURN — if he believed these creators had a legitimate case against these tech juggernauts. He conceded that no one can know “how the courts will rule on this issue,” adding that he “wouldn’t be surprised by any outcome.”
“I don’t think the novelists have a case unless they can show examples of AI spitting out wholesale cut-and-paste sections of their work,” Gietl said.
“Large Language Models are trained on a wide variety of materials to create original works. There’s no legal precedent for using copyrighted material to train or study for a project, creating something entirely new, and then arguing you owe money to the original creator.”
The legalities of tech companies using copyrighted material to train their language models are complex, and how judges will rule in these cases remains to be seen. However, some experts have speculated about the issue by pointing to previous fair use cases that could be used as an argument to justify using copyrighted material.
“Knowing Congress, lawsuits are likely to move fast enough to keep up with the pace of violations. But lawsuits shouldn’t halt AI development completely,” James Poulos, host of “Zero Hour with James Poulos” podcast, said.
“There are tradeoffs here, and the government and the country owes the people the enforcement of the law as it exists even if those tradeoffs reduce at the margins the outsized advantages AI firms enjoy as they race to establish US dominance in AI. Yet, if we want to change the copyright law, Congress should be responsive, instead of just letting copyright be violated into extinction.”
Others have speculated that the solution to the copyright issue could be companies issuing licensing deals, which are widely used in the music industry today. Matthew Butterick, a lawyer currently suing companies for scraping data to train AI models, suggested in 2022 that “companies making licensing deals and bringing in content legitimately” could be the path to peace between creators and tech companies.
“All the stakeholders came to the table and made it work, and the idea that a similar thing can’t happen for AI is, for me, a little catastrophic,” Butterick added.
Ryan Khurana, of Wombo.ai, appeared to agree with Butterick, saying that “[m]usic has by far the most complex copyright rules because of the different types of licensing, the variety of rights-holders, and the various intermediaries involved.”
“Given the nuances [of the legal questions surrounding AI], I think the entire generative field will evolve into having a licensing regime similar to that of music.”
Still, others have offered a less revolutionary solution to the issue. Dr. Anjana Susarla — the Omura-Saxena Professor in Responsible AI at Michigan State University — noted legal scholars have pointed out that “nonexpressive” should be considered fair use.
“In practice, that means that the law allowed Google Books to scan books from the collections held by libraries, and the scans would ultimately be made available as a full-text searchable database for the public to search through for particular terms, with short ‘snippets’ displayed accompanying the search results,” Susarla said.
“It is possible that the courts can allow similar exceptions to Generative AI companies.”
Susarla has also written about what federal legislation might look like if it is to address the “grey area of what happens when there are unintentional violations of copyright law.”
Artificial intelligence and the future of creativity
Despite the ongoing legal battle between artists and tech companies, there’s a second-order debate about what role AI has to play in the creative process.
Some have argued that AI should be used to enhance human creative works, while others have expressed pessimism about what AI has to offer art at all.
Walter Kirn — novelist and Editor-at-Large of County Highway — posted to X earlier this month, writing: “AI art is not advancing. Taste is regressing. In time the trends will meet.”
Kirn published some of his thoughts about AI art in The Free Press in 2022, noting that DALL-E — an AI intelligence application that generates images based on written prompts — is “a cultural-mining operation with a clever assembly line on top.”
In other words, Kirn suggested that these hyper-sophisticated AI technologies cannot create anything original; they can only rearrange pre-existing material imagined and brought into existence by humans.
Kirn told Blaze News that AI could serve as a “synthesizer” or “instrument” for the artist, but that it’s a mistake to confuse AI as an artist itself. As a novelist, Kirn noted that human language — especially as it relates to literature — is far too unique for advanced technologies to emulate.
“[AI] doesn’t have to decide what’s worth giving power to,” Kirn said, concerning the process of creating a piece of art. He added that a novelist may take “a year out of their lives, or five or ten because some subject is important to them,” but these micro-decisions do not come into play for generative AI.
Kirn concluded by comparing a mother with an actress who plays a mother in a film or television show. Just because an actress who portrays a mother on the screen appears like a real-life mother doesn’t mean that they are the same thing. The same comparison applies to an artist and technology that mimics what an artist does.
However, some don’t seem to believe human creativity is all that impressive. Berkeley Executive Education stated that human creativity “is not as elusive and magical as we often make it out to be,” adding that “[c]reative thinking consists largely of intentionally combing patterns, ideas, and concepts to produce unique creations.” The institution seemed open to the possibility that human creativity could be made obsolete by AI in the future.
Poulos said humans would face a “dark future” if all creative output was left up to machines. However, he went on to say he isn’t confident humans would be “willing and able to accept a world where bots have replaced all human artists.”
“It’s not hard to envision a robot ballerina superior in its stamina and moves to a human ballerina. But even if the robot is clad in a hyper-realistic skin suit, there’s something profoundly unmoving about watching a machine pretend to be a person relative to watching a person artistically perform,” Poulos said.
Instead of AI overtaking human creativity, it seems more realistic for humans to leverage advanced technologies to sharpen their own artistic vision. Susarla suggested that generative AI could serve as “another technological tool that artists will use, similar to photo editing tools and CGI technologies.”
Lance Weiler — a filmmaker and professor at Columbia University — has been at the forefront of an effort to encourage young artists to “embrace the machines.” The New York Times reported in 2023 that Weiler has shown his students “how computers might become creative partners instead of professional dead ends.”
Weiler made a name for himself after inventing an augmented reality game (ARG) around his 2006 film, “Head Trauma.” He mentioned that his students don’t have a choice but to embrace the cutting-edge technology available to them. And if they refuse, they could fall behind other burgeoning artists.
“What does it look like to slow down a cycle that is moving as fast as artificial intelligence?” Weiler asked. “Well, nobody is slowing down. We’ve opened Pandora’s box. It’s already out of the box, man.”
There’s certainly a distinction between artists leveraging AI technology to improve their work and allowing AI to make human creativity obsolete.
Bella Ross, of the San Diego Union-Tribune, said she’s “fearful” of how AI could push artists out of the field “simply because it will almost always be cheaper and more efficient.”
“What gets lost in a society that favors robots are the very things artificial intelligence lacks, and what makes life beautiful and worth living: artistry and shared humanity.
Gietl has expressed a similar pessimism, noting that art exclusively generated by machines falls “into an uncanny valley.”
“Undoubtedly, some artists will be negatively affected by this [AI technology], which is unfortunate. But AI will never be able to replace paintings or the theater.”
“If you believe that truly powerful and meaningful art comes from the soul, an AI will never replace that,” Gietl concluded.
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