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a very it-tech-looking image full of blue lights and the letters AI in pink at the forefront

Two actions we have to mention as we proceed to talk about Artificial Intelligence (AI) are fingering and sweating. Believe it or not, but these two things will play heavily on whether AI-generated works can even be copyrighted. 

This is important in part because the current flood of AI-generated works is largely made up of fast cash grabs. Invalidating their copyright claims is a step towards not allowing these works to fight for space on platforms like Amazon. I’m not so naive as to believe it will be that simple, but it is a step forward.

Let’s start with sweating. There is a principle called the sweat of the brow in copyright. It is the proposal that if enough effort is put into a work – regardless of creativity – it should be copyrightable. The United States rejected this principle in the mid-20th century in a case that involved the compilation of facts into phone books. However, not all countries land in the same place on this issue. But what does it have to do with AI? 

It is very simple. The programmers and companies creating the generative works are likely to argue that though the individual works are not created by a human (as facts aren’t) the effort taken to create the work and make it usable still elevates it to copyrightable status. As different countries have different stances on this, we could see a situation where a nation that does recognize the sweat of the brow principle and is party to widespread copyright agreements with other nations becomes a haven for AI generative services.

However, I can also imagine nations providing exemptions to their existing copyright laws to exempt AI works from those protections. It is another case we need to be vigilant and campaign.

Now, fingering, or at least the movement of a single finger. Visual art is an interesting field. Once upon a time, creating a visual piece of work required a deliberate human effort that involved using ink, graphite, chalk, paint, or something. But with the invention of the camera, a single errant finger could create an image. So, a question came to be asked that in many ways is the opposite of the sweat of the brow principle: If a work takes so little effort to create, can we say that the spark of creativity is really involved regardless of it being an original work? In other words: Can a piece of work be copyrighted even if no human expression was involved in its creation?

Mimi & Eunice: Sweat of the Brow

In many nations, including the United States, the answer was yes, it can be copyrighted. I can stumble blindly down a street and accidentally hit the camera button on my phone and (attempt to) sell the resulting image as an original piece of work. This is important, because while developers argue for the sweat of the brow, end users will argue that some effort, no matter how lacking in creativity or intention on their part, allows them to copyright a work. If so, you too can write a hundred books today so long as you can come up with a hundred prompts for the AI generator.

Of course, photographers argue that it isn’t quite so simple.  They frame a photo, create the right lighting, manipulate the image after the fact and so on. And it is a valid argument but do we allow that for a book that someone sits down and edits? A judge has ruled that a comic book created with AI art is not copyrightable, despite the substantial effort that went into refining the prompts to create some consistency. And despite the creator combing through thousands of images to find just the right ones – just as a photographer might take thousands of images and only use a small portion of them for the final project.

So, what is the answer? I don’t have one. No one does. What we have are arguments, points of debate and a future where we will have to be engaged or the decisions will be made without us. What we do know is that the future will be interesting. Never before has man had to define creativity, because we have never had a reason to distinguish between something made by humanity and something made by another entity. 

If you think the philosophers will struggle with this, just wait until the courts have to. And that is coming up very fast.


//Leto Armitage


The door to Leto's quarters. You can see his face through the round ship's window.

Leto Armitage was born in America under a set of circumstances that prophesied that he would one day unite the lost tribes and return the Ever Summer. Somewhere around twelve, he realized he had been left unsupervised and binged too many Arthurian movies in his formative years and that he was just another kid who accidentally got an education while reading above his age level.

By the time he turned old enough to get a passport, he started finding excuses to travel determined to find out what culture, food and women there were to experience. After learning to grill in Oaxaca, do kinbaku in Japan, and being banned from several former Soviet block countries, he returned home to settle down and see what damage he could do locally.

After working jobs including being a short order cook, bodyguarding strippers and professionally doing reader’s advisory for erotica he realized the most reasonable path forward was to become a writer. Today he lives with cats, dogs, and humans who seem to like him despite actually knowing him. He prefers to sit on his back deck, listening to the birds and Barry the Bumblebear bee, while he writes cozy, uplit romance and raunchy erotica.


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