Warfare of Art & Law Podcast
Warfare of Art and Law Podcast sparks conversation about the intriguing – and sometimes infuriating – stories that arise in the worlds of art and law with artist and attorney Stephanie Drawdy.
Warfare of Art & Law Podcast
AI & IP Panel Discussion: A Global Perspective Part III
Photographer credit for Anja Neubauer: self-portrait created with an AI tool.
Show Notes:
2:30 Prof. Tim McFarlin’s focus on copyright and authorship
3:30 Dr. Caterina Moruzzi’s philosophical/design perspective / focus on authenticity
5:00 Dr. Anja Neubauer's focus on global AI/copyright framework
5:50 Artist Lisa Lebofsky’s perspective on AI as a nomadic painter
8:45 “Authenticity Unmasked”–looking at the artistic process not the product
9:55 “Authenticity Unmasked” insight-centrality of human perspective
12:00 Neubauer–redefinition of terms like originality in light of emerging tech
13:30 Getty v. Stability finding outputs are not copies so not infringements
14:55 McFarland–genAI’s scale and redefining understanding of terms
17:05 US state and federal laws
19:00 need for unified global protection
19:50 Alan Robershaw – UK Getty decision’s technical focus on the process
21:40 Defining originality
22:10 Getty opinion at 601 v. AI models are memorizing/making copies
24:00 Robertshaw - one step away from judicial definition of consciousness
24:40 McFarland – scale is the concern
25:35 Lebofsky – how prior claims of infringement fit into AI/appropriation of artists’ works
26:20 McFarland – ‘substantially similar’ takings are prima facie infringement subject to fair use defense
27:10 consideration of outputs flooding the market harm
29:25 Lebofsky – use of AI through tools like AI Charm Lab app
31:00 Lebofsky’s view of threats to her style and her language
32:45 human requirement for ‘authorship’ and consumer trends
35:55 Moruzzi – human effort to value the process
37:15 Process visible in generative AI circa 2015 v. current genAI’s less visibility and thus less authenticity
38:30 Anthroprocentric – human need for authorship
40:20 Robershaw - Monkey-selfie case; animal versus machine personhood
43:15 McFarland – Arkansas statute on AI
44:40 Gould – UK Section 9(3) - limited copyright for output in person who organized the output
45:00 Neubauer – issue of term “equipment” for tools
46:50 Gould – current copyright legislation is not fit for purpose
48:35 Distinction between camera use and AI model training
49:05 Copyright Criminals documentary regarding music sampling
50:00 Sampling case involving Kraftwerk
51:35 Moruzzi – response to consultations
53:00 McFarland – extent of law v. parallel tracks to copyright or other alternatives to preserve and protect human creativity
54:00 Stefania Salles Bruins–solutions outside the law
54:40 Copyright not fit for purpose
55:20 Neubauer - Shift in definition of artwork
55:45 Lebofsky – how to establish boundaries
57:25 Robertshaw re: Lebofsky’s paintings
58:00 Salles Bruins – Lebofsky’s coding that cannot be replicated
Please share your comments and/or questions at stephanie@warfareofartandlaw.com
Music by Toulme.
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Thanks so much for listening!
© Stephanie Drawdy [2025]
The law is powerful and also implementations.
SPEAKER_07:Welcome to Warfare of Art and Law, the podcast that focuses on how justice does or doesn't play out when art and law overlap. Hi everyone, it's Stephanie, and that was Professor Tim Harlan from a recent AI and IT panel in which we discuss the extent of the law's ability to address issues raised by merchant cats in the arts. This panel also featured artists Lisa Lebowski, Dr. Katarina Morutsky, and Dr. Anya Noiver. What follows is the discussion of this panel in which they bring their diverse perspective to the query around whether originality, authenticity, authenticity, need to need to be redefined, given what you have. Welcome to Warfare Heart and Second Saturday. Thank you all so much for being here. It's such a delight to introduce this diverse panel of professionals to our approaching AI usage in the arts from academic, artistic, legal, and philosophical perspective. We have Professor Tim McFarland with Stamford University's Cumberland School of Law. Tim, thank you so much for being here. Dr. Katerina Maruzzi, Chancellor's Fellow at Edinburgh College of Art, Institute for Design Informatics. Thank you so much, Katerina, for being here.
SPEAKER_05:Yes, hi everyone.
SPEAKER_07:Dr. Anya Neubauer, attorney and consultant at the intersection of emerging tech and copyright. Anya, thank you so much for being back on the podcast.
SPEAKER_03:Thank you so much for having me.
SPEAKER_07:And we will also be joined by Lisa Lubowski, a nomadic planaire painter. So to begin, Tim, if you could start us and everyone can give an introductory comment about their approach to AI, what brought them to it, and their perspective.
SPEAKER_00:Sure. Thanks, Stephanie. So I'm an intellectual property and most specifically a copyright law-focused law professor and legal practitioner before becoming a full-time teacher. And I write uh in the area of authorship uh primarily in my scholarship so far, and uh the the issue of authorship and uh the you know credit and copyright ownership or lack thereof uh in uh AI-generated and AI-assisted works is of particular interest to me, and I've written a paper recently about that, and also thinking about uh the ownership of AI generated creations uh with regard to functional creativity and patents. And so that's where I'm uh coming to the subject currently and uh would love to chat about that and and other things that you all would like to uh discuss.
SPEAKER_07:Thanks so much, Tim. Katerina, would you like to go next?
SPEAKER_02:Yes, of course. Yeah, so hi everyone. Uh I'm Caterina and I mostly work now on creativity and artificial intelligence from a philosophical and and design perspective. But the way in which I got into working and researching in the field of AI and creativity uh was not uh straightforward, but it was actually it was really the topic of authenticity that got me interested on AI and creativity. So my background is in philosophy and classical uh piano. So I was trained as a classical pianist, and I was really interested in the technology of the instrument and how the affordances that historical instruments like early keyboards have and how they shape how composers and composers compose their music and how performers perform what the composers have written. So I started thinking about authenticity, the concept of authenticity, and how technology changes the way in which perceive we perceive what is authentic and what is not authentic. And then uh generative AI came and changed all the rules, and then I I gradually started working more on how these new technologies are changing perceptions of creativity, but yes, with authenticity as one of the key topics that I'm interested in.
SPEAKER_07:Thank you.
SPEAKER_03:Anyway, um yes, um thank you again for having me. Um I'm a lawyer for 25 years in Germany, and I'm specialized mostly on copyright law, and I just finished my PhD on AI and authorship redefined towards a global copyright framework for commerce and human originality, and I did a um comparison between uh UK US and German law, and uh try to make um a cross-sectional evaluation with the stakeholder views about um AI and copyright. So this is my part. Actually, we are all very similar, I see.
SPEAKER_07:Thank you, Anya. And Lisa.
SPEAKER_06:Hi, um I'm an artist in a very remote area, so technology wants me. You know, I uh it's interesting being invited onto this because I don't I actually don't work with AI, but it falls my way a lot because I do work with a lot of artists and uh and I've actually been interviewed in terms of an app that is being developed to uh be a tool for artists to use for AI. So um uh and how it can be helpful and not not something to be so feared. Um, but yes, so I am a nomadic painter and uh uh happy to be here on this panel.
SPEAKER_07:Well, I definitely want to circle back and hear more about the app. And we had kind of emailed back and forth about how AI wasn't necessarily in your practice, but if you have any initial thoughts that you want to share about the benefits or risks that have immediately come to you in the last few years of the generative AI boom, even for sure, for sure.
SPEAKER_06:I mean, the concern I think a lot of artists have is that it's going to somehow replace them. And the thing is this I just I I really truly believe in the human uh desire to see human like other people excel. Like we love seeing sports, we love seeing people accomplish things that like there's just nothing that that that will ever replace that. And AI still is of people, so it's it's how we utilize it. I think it can be very helpful. Uh, I see this as probably similar conversations that were happening when photography came around in the 1800s and they said, that's it, no more painting. People are gonna take photos. But you know, even today, I mean, yeah, I have access to a camera. Well, first of all, painting's still around, clearly. People are still doing it. I don't think you can ever take away from the want of people to, you know, put mud on cave, you know, the inside of cave walls and express themselves. Uh, that's you know, that's the heart of painting. It's the heart of humanity. But uh, you know, with even with photography and all the advances in it, I people are still painting. I can take pictures if I wanted to, but I'm a terrible photographer. So just because the tool exists doesn't mean you you can utilize it. You sometimes still need the people behind it to be able to make it progress in the way and be useful in the way that you need it to be. So there's I just don't see that you can segregate the people from the from the tool.
SPEAKER_07:Yeah, yeah. And uh that prompts me something I'd heard about the project that Katarina is doing, Authenticity Unmasked, where they talk a lot about the process, which is kind of what I'm hearing from you a bit too, like the importance of that human being in part of the process. So thank you, Lisa. And perhaps maybe we segue into a little bit more about Katarina, the project that you've recently been working on, this authenticity unmasked and the the focus on the the authenticity as a term and and what it means.
SPEAKER_02:Yes, of course, yes, thanks. And yeah, I think it's a really nice segue because uh, like when Lisa was talking, she was talking a lot about the process and in my research on creativity, I I look at the process rather than the product, and I think even more so now with AI, it's important to pay attention at what the process is because just how good the technology is at the moment, just looking at the product doesn't tell us much about uh who has created it and with which technology. So, yes, with this project, so Authenticity and Mast is uh uh was an art commission that uh culminated into an art exhibition this summer as part of the Edinburgh Arts Festival. And uh we commissioned three artists uh to create uh original work that engaged with the question how is AI changing our perception of authenticity, but also the way in which you as an artist approach the process of creativity with authenticity in mind. So, what does authenticity mean to you? And really what came out of this process of collaborating with the artists and looking at their final artworks, really what emerged is the centrality of the human perspective. It it was a project about uh AI and reflecting on technology, but that's really what uh the key uh insight that also people, visitors who came at the exhibit were gaining from interacting with these works. So the works um uh are very diverse. It's uh one is an installation, other two are like video art pieces, uh and they addressed the concept of authenticity from very different perspectives. One from a more geographical and geopolitical side, so how is technology changing also the perception of borders and how borders, geographical borders, are uh considered and presented. Uh the other one from the side of hallucinations, so this nonsensical output that uh the AI technologies many times uh giving us in return to our input. And the last one was all about embodiment and the relevance of embodiment for um the authentic process of creation and what happens if we take embodiment away from the process. Uh so I I started the project with the idea that authenticity is not one but many, uh, and really this project and this process of uh going through this concept and reflecting with the artist confirmed my assumption that it's very difficult, if not impossible, to define what authenticity is because it's such a diverse and complex concept and also very context-dependent.
SPEAKER_07:Thank you, Katerina. Shifting over perhaps to you, Anya, just to talk about like also how in your work you were and perhaps still are questioning how certain terms need to be redefined in light of the emerging tech that we're seeing. Do you want to speak to that?
SPEAKER_03:Yeah, um, so that's a very interesting point. Uh it's it's almost uh impossible, as Katarina just said, um, to define what originality really is. But um I I try to to look at it from another kind of perspective in my work. So um there was one very interesting uh work um that uh compared or that explored how AI really works, so that it not only um consumes the syntax of data but also the semantics, and from the semantic definition in uh the technical way, you could also try to define originality, which I couldn't do in my work, otherwise it would have been over a thousand pages. So I left it with that. But this is this is my point in my work. We needed to change the definition of work in order to uh cope not only with the syntactic but also with the semantic part of an artwork, and then we could have a possibility to cope with that. So uh my question goes to Tim as well. Did you read already um uh Getty Images versus stability? It came out last week, the ruling. So the judge in this in this court decision said, well, it's not a copy, and so therefore it's not an infringement. Although you see in the in the in the outcome of stability, the almost exact photograph, but only almost, and it also had the watermark in it, and she said it's not a direct copy. I think partly she's wrong, and on the other hand side, partly um if we would change the definition of the law in some way, if we had a framework, an international framework that could agree to this certain point, that we have to to to get together a definition for um syntax and semantics in the definition of work, then we could cope with such problems. I think. So I'm very eager to to discuss this with you because it's it's very complex, and I'm always interested. What do you think about it?
SPEAKER_07:And we're referring to the voluminous opinion that came out of the UK court on the the get because there's also a Getty suit pending in the US, but this is a decision in the UK that you are referring to, Anya. So if anyone has any thoughts or comments on the Getty decision or anything that Anya was just sharing, please feel free to jump in.
SPEAKER_00:I would just say generally, because yeah, I have not digested that full uh decision, but I think that this is yeah, this is the crux that we're getting to uh on the infringement side, and then on the uh authorship ownership side is you know what on the infringement side, what is a uh what would what constitute an infringing copy? And are we needing to change that definition, that sense, uh given the scale of this new uh and quickly advancing AI technology? And then on the front end, you know, with authenticity to connect it to Katarina, are we needing to adjust our understanding of what it means to be humanly authentic and original, to capture copyright uh in, you know, and and patents, other intellectual property rights in what we are generating using this technology? And I do think that that uh it's a it's a fascinating and oftentimes frustrating time when you have these new technologies like the like photography, like the printing press, like AI, like like books going further back uh to to to visit this. So we're in exciting times, which is a blessing and a curse, perhaps.
SPEAKER_07:And I would just point out that point you made, Tim, about the scale of it, that should we be looking at these terms again due to the scale and Lisa's point about how artists and their process and what they bring to the table will ever be replaced. But this concerning part about the vast scale at which emerging tech can work versus a human artist is really kind of a crux of the concern. One of the points I would ask between Tim, your work with this idea of state copyright versus Anya, you are looking at an international framework and how to have harmonization across borders. Curious to hear the perspective of the two of you on that.
SPEAKER_00:Yeah, I mean, I think there's I would just say initially, what really interests me the more I think about it is if there is a possibility for in the United States state law protection or state law coverage, if you don't like the word protection, of AI-generated creations uh when federal law presently is denying them, at least at some level, uh it becomes it really highlights the nature of the United States, the the federal system, that that it's it's a collection, it's both one nation and a collection of of you know 50 nation states plus territories, and you have then this potential for copyright and patent-like rights to develop uh across 50 many countries within the United States, in the way that trademark law and right of publicity law uh did uh you know had had further time to do that in the United States history, whereas with federal and copyright, uh federal copyright federal patent, because the the US Constitution was was ratified so early in the US, and then the the first Congress passed both uh comprehensive federal, fairly comprehensive federal copyright and patent law, you didn't have the chance for that to happen. And what I'm seeing is the potential for this to occur, you know, what we're thinking about worldwide, we can also think about nationwide within the United States.
SPEAKER_03:That's what I found out in my research as well. So there are different protections in different states, which is awkward. If you imagine in uh California, for example, you might be better protected if NIAI steals your voice than it is in Oklahoma. I don't know uh that precise. I'm sorry. So so this is why I'm so keen in uh trying to make a framework that is working worldwide. Because we also need something to protect Indian perspectives, South African perspectives, Brazilian perspectives, Chinese, Japanese perspectives of uh copyright infringement. Because we have artists all over the world. I think creation is the language that is spoken worldwide, and all these artists are really um, yeah, I think the poorer they are, the more they are at the risk of getting bankrupt because the AI is now able to cover all their works. And this is really a shame, just my opinion.
SPEAKER_01:I thought it was interesting in the Getty case that the judge, and I don't know if there's a sort of English way of looking at things, but I thought the judge did it. It was a really technical approach where she seemed to focus really on the process rather than the outcome. And it was like, well, and it seemed like a very tick-box-y technical thing, like, well, technically speaking, you didn't do this at this stage, and you didn't do that, and you didn't, but when you all add it up together, and she is wrong at some points with the techniques, she's wrong, actually. I'm sorry, I just said to No, it'd be interesting to see because obviously I think this will go to appeal just because of the scale of the parties and and and the precedent. I think you know, one side will want the precedent overturning, the other one will want the precedent firming up. So I think we've not seen the, but it reminds me of this idea, and it's I thought it was really interesting what you were saying about work, because I'm a big fan of transformative art and appropriation art if you put the effort in. So, you know, it's the old thing about that the girl who she did pencil drawings of photographs, but hyper accurate ones where they you couldn't tell it was the photograph or the pencil drawing. So technically that's an absolute copy, but it was still to me a work of art because somebody had done it in that particular way. And it seems to be that the judge is now saying, if I ask all you people to pop off to a play and say, I want you to go off to a play, take some notebooks, if you can want to sketch the set design, if there's any memorable phrases or anything, and tell me, and you all get back and say, right, tell me what your experience was. What was your did you think of the story? What was your favorite line? And then I reproduce that and I manage to reproduce the original play, then it seems that this judge would say, Yeah, that's fine, because of how you did it.
SPEAKER_03:You're completely right. So we have to make a definition what originality really is. So it's it's not only making a copy, it's just the way how you do it. And this is concerning the semantic part of a work definition, if you would say so. And I have to completely have to agree completely what you just said. Uh, she she like uh ticked boxes in her um uh decision. I just popped it up again, it's in number 601, if you want to follow later on. And she said such an interpretation uh precludes the potential for an article who which has never contained a copy of uh to be capable of being an infringing copy. And this is completely wrong. And she and she goes ahead and on. Um it's it's completely wrong. It's it's making copies. AI is making copies. It's it's really um there there were a lot of scientists who agreed already, and there are theses and lectures about it. Uh, the AI memorizes parts of that, what she learned. And it depends, it's between five to fifteen percent that it not memorizes this, but she remembers it and that at a hundred percent. So it would also be possible uh to program um an AI to reproduce a hundred percent if it's uh memorizable in that amount of pictures, for example. So saying that um it's not a copy because uh it's it it's uh it was uh like um listening to something and then it went out again, it's memorized. And there was a proof in it in this in this court decision, there was the proof because later on she says, okay, it might be uh then um a trademark infringement because you see the logo, and in the end it's not a trademark infringement because it was not used in a multiple way. So this was her opinion at the end. So, which is it? Is it recognizable of something or is it not? And I think it was.
SPEAKER_01:We were sort of like one step away from getting a judicial definition of consciousness, it seemed to me, because that's it was you know, what what's memory, what's processing? Do machines do it differently? Is it any different that if I went, you know, if I went and saw work of art and memorized it and then got home and sketched it, would that be an infringement? You know, but of course, because me machines are doing it, we're starting to get into is the machine thinking or is it just a recording device? And it you know, it throws up all sorts of issues like that. So it'll be interesting to see, you know, how this and it it's like Tim was saying, it's really interesting to see how different jurisdictions deal with this, you know, just different underlying philosophies.
SPEAKER_00:And I think scale is what is really causing us to be concerned and think more deeply on it because yeah, as traditionally, if if I looked at the at the painting in the art gallery and then I was inspired by it to create something that was reminiscent of it, but not substantially similar, I wouldn't be infringing by just seeing the the art. Uh, you know, I'm not infringing in my mind, but if the machine does it, and the machine does it at at such a large scale, now we have to rethink that and say, is there a different rule for robots? Or do we need to rethink also how we did the, you know, how we effectively did the rules for for human inspiration before?
SPEAKER_06:So I'm curious, because I'm not familiar with the suits that are happening, but there is a huge history of suits uh for artists that have, uh, for example, their images have been taken by big corporations and just printed on blankets and uh you know, completely out of control because they just grab their image off the internet. And then of course you go back and there's Warhol using stock photography and recreating art, and there's Shepherd Ferry, using the photo from um uh the the Associated Press for the Obama Hope poster. Um, so is any of this being tied in with any of this this uh new law that's that's being discussed around around AI and its appropriation of artists' works?
SPEAKER_00:I think the short answer is yes, in the sense that if there is a if there is a substantially similar, and this is that's the the key fuzzy term uh in US law at least, then it then it goes, then you say, well, yes, that is a prima facie infringement subject to fair use defenses, like what were raised in the the Warhol Goldsmith case. But the what AI is causing us to do now, I think, is to is to say, well, if if the if copies were fed in at the input and training stage, even if what comes out on the back end is different enough to not be substantially similar, do we still do we still think that that was that that was illegal infringing because we used the the human work to train it, and now what is coming out is at such a scale that it potentially competes uh to the disadvantage of you know it floods the market, it dilutes the market, as you hear this language for human authors, uh, even though these, you know, so even though they're these works are in the same genre perhaps, um, but they're they're not infringing in the ways that we traditionally thought of. But maybe we need to rethink how we've worked infringement because of the potential for driving humans out of business.
SPEAKER_07:And even in the states, we've seen decisions where that kind those kinds of factors are being looked at very differently. Like one judge in Northern District of California views market dilution as very important and another less so. So these are definitely even these kinds of elements of the fair use conversation are are kind of evolving in real time. I would just bring it back to you, Lisa, and ask if you wanted to share more about that app that you uh referenced earlier. I'm curious about the AI aspect of it and what the implications for that are for outputs. Would you want to share?
SPEAKER_06:Yeah, sure. Um, and it it is interesting because it, I mean, in the surface, dipping up my toes in the conversations around AI, it does seem like there's there's two concerns of uh, I mean, obviously for artists, it's it is you know copyright infringement, you know, ownership of what we do. But I I've personally, I think every artist is constantly a threat with that, with the amount of people that do copy and do recreate and you know, just seeing my stuff out there without my permission. I mean, it's happened to artists constantly. Um, but again, you know, I do again, I believe in that, you know, the Walter Benjamin, uh, you know, the unique aura of the work of art, you know, the the in the age of mechanical reproduction, like people still want to have the physical object. And that's as someone's point with um, you know, somebody did a perfect drawing rendering of a photo. And what's and it's not the same because it has the human hand in it. Like that's it's just a completely different object at the point because there is this physical attachment. I just don't think we're ever gonna lose that desire. Hopefully, that's a world I can't even imagine. Um, but in terms of the app, so I think the other side of AI is how it can be very useful instead of a threat. Um, and I always like to try to go to the more hopeful because there is so much in the world that is terrifying and hopeless. So um and uh so what these this artist is doing is um uh they are they're they're it's still in production. They uh it's a it's a software engineer and an artist couple who are who are coming up with this product called uh AI Charm Lab. And uh I think they've gone from, you know, they're still in research and developments, from what I understand, but for sure moving into the development of away from research. But they they, you know, canvassed many artists to see, well, in your vision of what AI is, how can it be? Something that's more of a muse, something that's more collaborative, something that can help you have more time in the studio to create. So, you know, it could be anywhere from helping to come up with a composition to cataloging of imagery, something that's just, you know, again, a tool that another tool that an artist may be able to use.
SPEAKER_07:It sounds like perhaps it would be labeled under that assistive AI comparison, or would there be generative aspects of it?
SPEAKER_06:Um they, I'm actually reading, I just pulled up their thing. It says uh they're exploring how AI can act less like a generator and more like a creative collaborator, helping artists test ideas, find new visual language, extend their expressive range. So uh, and I mean it could even come down to like the thematics of you know, mixing out your palette. Like there's so much in there that uh, you know, can really be delineated that way. Yeah.
SPEAKER_07:And what are your thoughts on uh purely the idea of copyright on its own? Because there are some artists that don't really value copyright and some value it very much. I was just curious where you come in on that.
SPEAKER_06:It's there's just so because that you know, I've had people completely mimic my style and you know what what I do and even some of my language out there. And I've even had galleries pick up artists like that who are priced at a lower point, so I essentially got pushed out. Um, and you know, at the end of the day, I mean, no one's gonna make a Lisa Lebowski paintings. And, you know, I I have not dealt with the horrors of my work showing up, you know, you know, completely factory mass produced on a blanket. I've had first, I'm just using that as an example, but I've had many artist friends that are like printed as posters and available at Target or something. I've had many friends have things like this happen. Um, and you know, I could be nervous about putting my stuff out on the internet. I mean, that was a huge fear for artists at one point. Don't put your stuff on the internet or have a watermark or do something, but that's so um obtrusive to the creative process that I just, you know, I'm like, I'm just gonna put my head down and keep creating. Because if I'm sitting here and, you know, shoring up every possible uh threat to my creative practice, I'd never get anything done. So the end result, you know, just keep making, just keep producing. It's what we do. And as as uh tools and and things that are developed around us with threats arise, like just keep being who you are and be excellent at what you do.
SPEAKER_07:Yeah, yeah. Knowing that you're based in the US, I was just curious too about your perspective on the human authorship aspect as a requirement in the US and other jurisdictions. Some I've heard in the creative sector say that's very important to keep that and not allow generative AI works to be copyrighted in order to protect that human authorship. And I was just curious if you had thoughts on that also.
SPEAKER_06:Yeah, I I know this is especially a topic of conversation in um Hollywood, uh, with actors being replaced by complete rips of them. And I do think that that's really disturbing. Um, I mean, I guess it really speaks to who would want to consume that kind of material. Um, but it's the same thing, you know, like a lot of the art, you know, there's a lot of appropriation art, which just isn't good. So uh but this still gets you know noticed because it's it's it's trendy or what have you. Or something with the whole NFT thing. It's you know, people are like, oh, this is a trend of something, and it had meaning for a minute there. But um, you know, there's the longevity of humanity, um, which I think usually is is the grand equalizer of of all of this. Uh in terms of it, you know, it's it's up to who's consuming it. I mean, obviously, as a creative, as somebody who creates, I want to see the human hand in things. I appreciate the human hand. I collect art, you know, I don't collect digital art, you know, but there's some people that is that is their interest and they want to have more of that. They're like being on the cutting edge of what's, you know, what we're breaking through on. So um, you know, I don't, I just, I just again, I just don't think that people can be, I just don't think we want to see us get completely replaced. And I think it's a matter of uh of just seeing how how we can move forward, understanding that this exists, but how can both exist at the same time? And uh, you know, I I always joke, having once been married to a lawyer, it's you know, people people don't like lawyers until they need one. And this is where I really do value, you know. So this is, you know, I and I'm like, let it play out in the courts and let's see what happens and let people, you know, like you know, have have people make their cases and so forth. So it's um it's I, you know, I'm I'm curious. Uh again, I personally don't want to see the hand go away. I don't want to see a AI person, you know, a non-person who's filling in for an actual actor. It's not impressive to me. It's impressive to see a person do something. Uh, but also understanding that it's a person behind this technology that's it's just it's getting its information from people. So it's it's also, I don't know. I it's like I'm just really curious to see how this is all going to progress.
SPEAKER_07:Yeah. And it what you're saying too makes me think of one of the artists, uh, Katerina, in your project uh that you were referencing before, Authenticity Unmasked, is Georgia Gardner. I had heard an interview where she talked about how it's that human error and the performance anxiety, uh, those kinds of elements that change and impact a performance, a musical performance, uh was is what she was referring to. So do you want to share a bit about your thoughts on that, Katarina?
SPEAKER_02:Yes, of course. I think it also um links it back to one concept that came up before in the conversation, which is the concept of effort, of making an effort through the process, and and it it is through this effort that we also value the process, not just as creators, but also as as audiences. So as Lisa was saying, we we we we appreciate seeing the actor and maybe knowing about uh the background that the actor has and the history behind it, and it's not all just about the final product. Um so yeah, I think in when talking about authenticity in respect to artificial intelligence, there is an assumption that the more accurate these um models can be, the more authentic they will become. Uh but I I think that actually the opposite is true, the the more they are indistinguishable from um, or uh yeah, that we cannot really understand what's going on behind um the process just because it's so complex and and and and so developed now, the the less authentic it feels. Um so when I started working on AI and creativity, it was 2015 and it was when generative adversarial networks first started to be developed. And it's this still a generative AI technology, but uh less developed just because it was 10 years ago, and through that artist used to create like glitchy art and exploring the boundaries of the technology where it went wrong, and and that was so fascinating because you could actually see the process and and get behind the curtain uh and understand what was going on. So the more flawless the eye becomes, the more accurate it gains. I think it doesn't necessarily lead to more authenticity that can actually lead to yeah uh diminishing the feeling of of authenticity in that. So yes, I think authenticity in the end is very much tied to the the process, the the effort, that the subjectivity that is behind a um a process, and that's very insightful also for when we are talking about authorship, I think. Um because the concept of an author that we have in in our legislation, at least is in the West in the Western world, at least the ones that I'm more familiar with, is very much tied to it it's anthropocentric in the end. An author is a human uh person. Uh so I think yeah, there is this both the the philosophical and and the more the assumption that we have about what an author is, and then the legislative part uh which is has been developed from that, that shapes the way in which we consider authorship and consider authenticity, which is hard to get past and uh and just accept that uh also something that is non-human can be considered an author. So yeah, that's why I think I'm I'm I'm totally on board with trying to question at least the concepts that we are using and seeing if if they are really the best and most useful concepts that there are, or if instead we should just consider them.
SPEAKER_07:Thank you. I am curious unless anyone has any follow-ups on that. Lisa had mentioned a moment ago, I believe, was the idea of just letting it go through the courts, which we've we've talked a bit here about the idea of what court decisions are out there. But as far as even your work, Katarina, where you are looking at and pulling empirical data about artists and their ability or role in shaping these kinds of terms going forward, like authenticity, the role of the artist versus the legislator versus the courts in shaping what's going forward and protecting and bolstering artist rights. I'm curious uh if anyone has any thoughts and wants to jump in about that.
SPEAKER_01:This just all reminds me of the um monkey selfie case. But had that monkey come across, let's say the monkey comes across, finds a camera, and starts playing with it and starts messing with the settings, the focal length, or something like that. It's digital, messes with the colour balance, and takes a photograph, and people go, Oh, that's still a really good photograph. Does that remove the idea? Because the photographer who set the camera up, that photograph now is not the product of his effort, it's it's the monkey's effort. I'm sorry, no, because I do a lot of animal rights stuff, so animal personhood, I follow the machine personhood things because of the potential for deep.
SPEAKER_03:This is the the argument actually that a creator can never be a computer, it always has to be a human being. As um particularly it's it's uh said in the German law, in the British law, and uh in the US as well, it will be treated like this because of this case. This is what even the copyright office says. Because of this uh analogy between this Naruto versus Slater case between AI.
SPEAKER_07:Well, Alan, you were adding a little tweak to it though, weren't you? Like putting a little bit more of the monkeys uh interactive.
SPEAKER_01:Yeah, because the whole point of normal IP law with photographs is it's unless it's a commission, it's the person who took the photograph because they're doing all the creativity. And in that case, they said he put the camera there. So the mere fact that the you know the monkey pressed the button doesn't matter. But had that monkey done so like move the camera, so all of a sudden you've got a really nice bit of framing in the background and mess some of the settings, so all of a sudden, you know, oh I said it's much better with that ISO, you know, something like that focal length. So the photograph that the end result, and we're looking back to what Anya was saying about the other case where it's all about end result, the end result is a product that's nothing to do with the person who owns, they just own the camera now. They've done nothing to create that photograph other than introduce the camera into the environment. I mean, if I left a cat loads of cameras around the street and just left people take pictures and it all fed back over the web, you know, I'd still own the copyright there, I think. But is it the fact that sorry, I wouldn't own the copyright? Sorry, I wouldn't own the copyright there because somebody else had done everything. I'd merely uh given them the capability to do it. So then you get an interesting thing because they'll say, well, the animal can't hold the IP rights because it you know it doesn't have personhood, but you can't have the IP rights because you've done nothing. So does that mean all of a sudden they're like Bonavicantier and just floating out there? And all of a sudden you've got a copyright free piece of work.
SPEAKER_00:I think that's that's seemed to be the position of the you know, the the majority position of folks who analyzed it is that yeah, it's this is public domain. It seemed like that was Wikipedia's position, which I think was maybe what sparked the dispute to begin with. You know, one of the things that I'm thinking about with with this analogy in my in my paper is in if it happened in uh the US, so if this was you know in the the hills of Arkansas, uh and and the and you know animal was was a bear uh as opposed to a monkey in the wild there, I I think there's there's an argument to say, well, no, you're not an author uh by merely putting your camera up there. But is there then, so you can't it can't be federal copyright, but is there an argument for some common law, or potentially now in Arkansas, you know, under the the statute they passed with speaking to AI technology specifically, that there is some type of state law ownership theory that is not tied to authorship, but is tied to a a labor right or a moral right. Hey, it's my equipment. I put the camera out there, I should have exclusive rights to this, not because I'm an author, but because there is no authorship here and it was my equipment. And I think that by analogy could could apply in these AI, in the AI scenarios, uh, but it's yet to be tested.
SPEAKER_04:The UK right for copyright, a limited copyright in computer generated work, it's the person who has made that possible, facilitated it, paid for it, organized it.
SPEAKER_00:And you have that in the UK, you don't have it in the US yet, but I'm my theory is you could have that at a state level potentially.
SPEAKER_03:But I don't feel comfortable with the idea to call it equipment. Uh, compared to AI, you would say that all the artist tree, all the artwork that has been sucked in for feeding and programming the AI would be just equipment. It's not equipment, it's copyrightable artwork. And there has no has been no licensing, and that's the point. So comparing it to equipment, so this is uh a camera of May, but somebody else took the photo, so therefore he's a copyright holder, and I just provided some instrument for it. No, it's not an instrument. I think we really should be precise at this special point, because this is why the art work world is suffering right now. Because there are artists all over the world, books, for example. I think as um artistry, uh physical work, it's not the problem. It's the digitalizable works we are talking about. It's about photographs, it's about books, it's about programming, and all these things works in total have been sucked in just for learning. And so the outcome, of course, is uh free domain. It's it doesn't belong to anybody, but it's something that is reproduced at what extent is the question because AI just it's like the human brain, it gets in and it gets out, but it memorizes it. And so therefore, it's not exactly the same, except I program the AI that the output will be the same. But just comparison with the camera as an equipment, I think it would not be far enough as we need it here in the discussion, I think.
SPEAKER_04:And I think that gets us back to Stephanie's question about um, you know, the how do we move forward? Uh, do we just leave things to be sorted out by the courts and litigation, or are we at a stage where in order to protect those creatives, we do need some legislation because the copyright legislation we have almost all over the world, I would hazard a guess, isn't fit for purpose to provide the protections um that are needed. And you know, what whether this is worked out through sort of collective licensing schemes or um you know however we end up, I think um, you know, I think it's it's not going to work adequately under current systems. And I think perhaps to go back to the um Getty instability case, where Anya, you were saying, I mean, I I'm not technically uh adept enough to be able to read that judgment and know that the judge was wrong. To me, from what I've seen so far, it sort of seemed to make sense. As I say, in accordance with the legislation as it is at the moment. Um yeah, maybe work with this new environment that you know we need to we need to address that. And I actually think it will be addressed in the UK um in the next parliament. I think we will get some legislation in the case.
SPEAKER_03:Please Emily, don't get me wrong. It's it's perfectly correct with the with the law, but she she didn't apply it correctly.
SPEAKER_00:And Anya, I I say uh point well taken about the difference between the the camera scenario and the training. I think in order to use the camera as as potentially a useful analogy, you either have to presume that the training is found to be non-infringing because of fair use or fair dealing, etc., or that in a future it will be licensed. And then I think you then then it's potentially a useful thing to think about. Uh the other the other thing that this conversation makes me think about is uh there's a great documentary called uh copyright criminals, where uh music producer Steve Albini, I think he produced some uh records by Nirvana, other rock groups are talking about music sampling, and he said, you know, I look, I have a I'm entitled to an opinion. I don't think music sampling is cool, but I don't think we need to get the law involved. The law is involved too much already. And and I think there's there's something to be said for that that that what I don't know the answer to this, but something I've been thinking about a lot is are are artists better served to other types of collective action to establish to advertise human authenticity and and and work in that regard and and not rely on the law and the courts to solve this because I don't know that it will.
SPEAKER_03:Yeah, exactly. And so sampling is something even in Europe we really can't consider what it's really like. Because do you know the the group Kraftwerk? Yes. So there is a case going on over 10 years right now, and last time the the the opposite opinion said, well, okay, uh it's sampling. So it's uh it's uh it's not Marsh. And the court judges said, Well, okay, we need to give it to the upper court, uh, European court to make a decision whether this is a prestige or not. So this prestige decision would have been a possibility to make a definition. So what is still a copy or copyrightable part of something or something else? I don't know. But everybody was waiting for this decision, and then I went like, oh well, we can't decide, we have to give it to the European court. And I went like, what? We needed it. So we have to wait approximately another three years, but maybe then we are ready to precisely define whether the output of an AI is a prestige or something else. I don't know. So this would have been so important.
SPEAKER_07:Well, as we are approaching the top of the hour, I would ask if anyone who would like to share closing thoughts about what we've discussed, but also the idea of potential injustices that have been or are being prompted by the use of emerging tech in the art sector. Any thoughts about that or how to best approach bringing a little bit more justice to the perspective and the approach going forward?
SPEAKER_02:Stephanie, yes, uh well, maybe one thing to say, I think also in response to your previous question. So, like what is maybe also what is the power that we have as individuals or also as artists, as individuals without necessarily going uh through the court in trying to influence this space. Uh well, one way is to respond to consultations. Uh not everyone knows that we have this this possibility, like the UK government has opened this consultation back in January on copyright and AI, and it received thousands of responses. It was uh yeah, unprecedented the amount of responses that it received. Hopefully they will listen, uh, but uh that that's something that is in our hands. And I'll just post a link in the chat because there is uh another consultation open at the moment of from the UN on on the right to develop and and AI. Um so this is something that we all can do and and to try and make our voice heard, and also in uh in in trying to surface some of uh the injustices or or biases that uh this this technology is bringing out.
SPEAKER_07:Thank you. Thank you, Kalerina. Thank you. Anyone else that might like to give some closing thoughts on that, Tim?
SPEAKER_00:Well, I yeah, I think uh that to me, I'm really I really enjoyed hearing uh everyone's perspective and the mix of us talking from a legal perspective and and an artist's perspective, uh that to what extent does the law have have a role here? And you know, and are there alternatives, are there parallel tracks, are there all or is there a better alternative than to try to use copyright law to preserve and protect human creativity? Uh and I think to me that's the maybe one of the core, if not the core, question that we're all grappling with. And it's conversations like these that will help us along.
SPEAKER_07:Stefania?
SPEAKER_05:I really enjoyed everything I've heard, and it was very informative, but I really like where Tim was going with like the outside of the law uh solutions to this, because I wonder, like, we're all looking within like a lifetime, usually, right, in our perspective. But like if we zoom out, the real issue is like how children these days will be educated to look at art and whether they will look at AI art as art or like distinguish between that and like historical painting, you know, the history of painting and like man-made art. And so I think that um like when those children grow up and are in power, that's gonna make all the difference. So, like, how do we shift things? Because the law is really driven by the case. Like the Getty K. It's literally a huge corporation pushing that. Uh, even existing copyright, we talk about copyright not being fit for purpose for AI, but existing copyright facetiously, right, is defined by Disney. Like Mickey Mouse defines copyright length as the sort of it, as I as I recall. Um, so like you know, how do you know how how do we solve the issue at its root, I think, rather than relying on justice, which is led by money, right? To put it. So I like what you look at. I'd like to see more solutions.
SPEAKER_07:Thank you, Sarah.
SPEAKER_03:Anya? My closing argument would be that we definitely need a definition to change for the for for artworks. That the definition of art is definitely something semantic and syntactical in both. And only this way we can protect everything.
SPEAKER_07:Lisa, did you have closing thoughts?
SPEAKER_03:I mean, this was this was great.
SPEAKER_06:Yeah, I mean, uh just in digesting a lot of this because you know, I it's true. I mean, I I'm like, yeah, let it play on the courts, but it it there's so many people that don't have access to that as an option. And and then also the the fact that it does take a long time hearing about the that case, the the sampling case, which took, you know, people were waiting for now, it's kicked off another three years. And so in time, sometimes we don't have the luxury of time. So I am I'm actually very curious now, what does it look like in establishing the boundaries of uh you know AI generated um art versus human generated art and and you know maintaining the respect of the human generated in the in the as this all develops? You know, how how does that, how do we establish that outside of a court of law? I don't know. I'm gonna ask you all. And I'm curious to to keep following this.
SPEAKER_07:It's definitely a conversation that prompts more questions than answers. And so I appreciate, thank you, Lisa, for your perspective today. Thank you, each of the panelists, Anya, Katerina, Tim, and everyone else who has joined. I really appreciate it. It's such a compelling conversation. It's uh definitely vexing at times. So thank you for bringing your perspectives. Is there any other closing thought?
SPEAKER_01:I'd just like to say thanks to your panel. Uh, because it's given so much to think about. And what's reassuring is all the little worries I've had in my head about this subject, that there are people who actually understand it addressing it. Because it's you, you know, it's nice other people actually understand the technical side of it. And also, Lisa, just to say, it's really funny because when you said, Oh, I'm not a good photographer, I went, but your stuff, your photographs are great. And then checked your website again, I just realized they're paintings. So that that in itself brings up a whole issue. So Jerry's just I got Lisa's stuff. It's just like I don't love it in Cornwall down here. There's loads of great places where you can take photographs of the sea. But anyway, and I was wondering how you'd managed to catch some of it. Oh, look at that. Maybe you could just put like and they're painting. Yeah, I just assumed you were just waiting for that perfect. Like, just wait for that wave to break. Click. I've done it now. Oh well, anyway, it's really nice. But it's lovely to uh see everybody tonight.
SPEAKER_05:Well, and maybe that's the thing, right? That's where all the coding is in there. It's just no one can access that coding, like the rest of the thing. Maybe the outcome, but never like the outcome.
SPEAKER_07:Thank you so much for the member. Injusters, anywhere, is it fine to