Copyright in AI works – what can we learn from our forebears?

Posted on: November 14, 2018 by


Edmond de Belamy, an AI generated work that sold at Christie’s last month for $432,500 (image c/o Christie’s)

Readers of this blog will have seen the post last week about Portrait of Edmond de Belamy, a piece of computer generated art created by the Obvious Collective through Artificial Intelligence, which recently sold at auction for USD 432,500. Amongst the challenges posed by AI technology for copyright law, is the question of how to protect the purchaser of the work: while Portrait of Edmond de Belamy is generated by AI, its aura and financial value are assumed to be undermined should the Obvious Collective decide to mass produce the work.

New challenges posed by new technologies? Perhaps at first glance, but the historical research of Institute of Art and Law member, Dr Elena Cooper, suggests that a study of the past may help us think critically about how to do things differently today. If we look back to the second half of the nineteenth century, an important time in the development of the modern law, we find rich debates about fundamental tenets of artistic copyright and how to conceive the underlying art objects the law protects.

The notion that copyright might also protect art collectors against the repetition by painters of their own works, was one aspect that was heavily debated. The repetition by a painter of a work s/he had sold would undermine the uniqueness, and therefore financial value of the original painting, and this aggrieved at least some collectors.

As described in Dr Cooper’s recently published book Art and Modern Copyright: The Contested Image discussed on our blog previously, during the latter half of the nineteenth century, proposals protecting collectors were put forward in a number of forms. Some proposed automatic copyright ownership by the purchaser of the physical art object, accompanied by implied warranties from the artist that the work was ‘new’ and ‘original’. Other proposals stated that where the copyright and physical property of a painting were owned by separate people, the copyright owner could not exploit copyright without the consent of the owner of the physical object. Alternative proposals, favoured by artists, allowed painters to retain copyright on sale of their work, but included a statutory restriction in favour of the collector preventing painters from repeating their work.

The question was then how to define ‘repetition’, and artists looked to limit this to cases of ‘confusion as to the identity of the work’ only, perhaps a test we would more readily associate with trade mark law today, rather than copyright.

The context for these debates was, of course, somewhat different: allied to the objections to artists’ repetitions raised by collectors, was the tenet that art works should be ‘by the artist’s hand’, a notion which sits rather awkwardly in the context of today’s AI technology. However, in taking us to a time of high quality debate about artistic copyright, when the interests of the collector, amongst others, were extensively debated, perhaps the past can shine a light on how the law might respond to the challenges of today.

Dr Cooper’s monograph, Art and Modern Copyright: The Contested Image was published by CUP earlier this year and will be launched at an event at the Victorian Picture Gallery, Royal Holloway, University of London on Wednesday 5 December 2018, at 6.15pm. If you are interested in attending please contact Dr Cooper:

This article was posted by Emily Gould on behalf of the author, Dr Elena Cooper.

The IAL will once again be running its course on intellectual property in June 2019 in London: the Diploma in IP and Collections. Follow the link to register your interest or to apply.