Thirty-Six Views of Copyright Authorship, By Jackson Pollock

38 Pages Posted: 1 May 2020 Last revised: 13 May 2020

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Date Written: April 7, 2020

Abstract

Humans have long used a variety of tools to convey artistic expression. Perhaps the most recent and mysterious artistic tools are machine learning or “artificially intelligent” (AI) computer systems that have captured popular attention. When taken in isolation, these devices seem to operate autonomously, giving the illusion that there is no author behind their output. In fact, there is a rich web of human effort and support behind any AI undertaking. When we pull aside the AI curtain, it becomes apparent that the attribution of authorship for AI-enabled creations is largely an exercise in tracing legal causation. Indeed, the concept of original expression, which is required for copyright authorship, implies a causal chain tracing the origin of fixed expression. In this article I show that concepts of causation, volition, and intention that are familiar from other areas of law also inform copyright authorship, and that the machine learning revolution affords us the opportunity to reveal previously hidden assumptions about copyright authorship. While I will begin by illustrating these concepts with examples from the graphic arts, the same principles are readily applied to other authorial works in other media. The result dispels not only the confusion surrounding mechanical creation, but a variety of long-standing problems in copyright authorship.

Keywords: copyright, expression, AI, artificial intelligence, authorship, fixation, causation, intent, volition, Naruto, machine learning, authorization, authenticity, conception, random, deterministic

JEL Classification: K13, K14, O31, O34, Z11

Suggested Citation

Burk, Dan L., Thirty-Six Views of Copyright Authorship, By Jackson Pollock (April 7, 2020). Houston Law Review, Vol. 58, 2020; UC Irvine School of Law Research Paper No. 2020-40. Available at SSRN: https://ssrn.com/abstract=3570225

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

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