Artificial Intelligence and US Copyright Law

by Johanna Wilder

[I just turned this paper in for my first assignment for Composition 102 at Shoreline College. I’ll come back after I get graded with an update.]

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 

—Copyright Law of the United States (Title 17) Section 102:a

Inspiration strikes at inopportune times. For me, inspiration most often arrives while I am in the shower: soapy and contemplative. Sometimes I burst out into glorious song, sometimes I have an eureka moment of pure understanding for my fellow humans, sometimes it’s a completely hilarious joke that goes unguffawed as it washes down the drain. Soap bubbles are an unappreciative audience, not given to standing ovations and thunderous applause.

Rarely do I make it out safely, skidding across the bathroom tiles, to reach dripping for pen or keyboard, to etch the idea onto the page or upload the idea into the cloud. Ten thousand recipes for the saving of humankind and our fragile civilization, have been lost in the steam: evaporated back into the atmosphere from which they came, unbidden, like the fog on my bathroom mirror.

When the ideas do stick, however, and I am able to capture them on paper or wrap them securely in magnetic fields, they are the raw material from which the arts and literature is shaped. I can then adorn them and develop them into something beautiful: like taking simple flour and humble eggs and turning them into an everything bagel, or even better yet, a chocolate cake.

Of course, anyone can go to the grocery store and buy whole wheat pastry flour, brown eggs, cocoa powder, brown sugar, salted butter, whole milk, and baking powder; but that does not make one a baker. A baker is a highly-trained combiner of those raw materials, with the skills to mix and combine them in a hundred different permutations, only one of which, when mixed well and poured into a greased cake pan, will culminate in the perfect layer of chocolate cake. Moist and delicious.

US Copyright Law, then, tries to protect the baker who bakes and sells delicious cakes, without interrupting people’s shopping trips with searches, seizures, and cake-ingredient-rights management, as they are just trying to get eggs and butter for their breakfast omelette.

One might say, that US Copyright Law protects your right to make your cake, and my right to make my cake; but not the idea of cake, or even the recipe.

“In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 

—Copyright Law of the United States (Title 17) Section 102:b

The US Patent system attempts, on the other hand, to protect a mechanical baking process, like one that makes hundreds of cakes a day to be sold on grocery store shelves. Those cakes have very specific recipes, and you can find examples of them all over the internet. Chef Claire Saffitz is noteworthy for her extravagant attempts to recreate mass-produced candy in the Bon Appétit test kitchens. US Patent Law protects the process of mass producing the candies, but does not prevent you or I from making exact replicas of them one or even twenty at a time, at home, for our own personal enjoyment, or for sharing with friends and family.

In fact, if we wanted to make a “Twix™”-like cookie, invent our own mass-production factory (using robots, of course), name those cookies something unique (“RoboCocoaWafers”, or some-such), so as not to run afoul of US Trademark law, we could. We would be following in the well-trod footsteps of Nabisco’s “Oreo™” cookies, as they overtook Sunshine Biscuits’ “Hydrox™” cookies, which were invented and sold years earlier (as noted by Ben Sales in his article on the dispute between cookie-makers, still ongoing, over 100 years later).

This Cookie War vividly illustrates how our system of protection for specific outcomes of the artistic and invention process is quite limited: even wholesome baked goods aren’t safe from copycats and outright thieves.

“In the age of machine learning and vast digital landscapes, the nuances of intellectual property become even more intricate. While a writer’s unique expression remains safeguarded, the core ideas they introduce flow freely, becoming threads in society’s ever-evolving tapestry. The balance lies in recognizing the value of individual creativity while appreciating the communal dance of ideas. Just as with cookies on a store shelf, the words penned by authors are out there for consumption, inspiration, and adaptation. The challenge is ensuring that original creators feel acknowledged and valued even as their ideas inspire new generations of thinkers.” 

—ChatGPT Plus, generated October 9, 2023: 1:19pm

Books and articles are not cookies, of course, nor even cakes. The amount of work that goes into their creation seems to include the sacrifice of no small amount of blood, sweat, and tears. Artists and writers pour their hearts and souls into their work, and rightly expect something in exchange for that, something more than the temporary relief of a laborious burden laid to rest. It is every starving artists’ dream that one day they might starve a little less frequently, or at least not to be left with an empty glass when the bottle of absinthe is passed around.

There is something ineffable about the written word and paint on canvas, or a well-framed photograph, or shaped clay and hewn stone. They seem uniquely human, because we value the effects they have on our lives almost as much as we value the emotional labor creators pour into their opuses. We build libraries and museums to laud the efforts and proudly display the works of our beloved scribes and artisans.

But few creators will be at the table when the billions and billions of US dollars are passed out by Silicon Valley venture capitalists in the digital gold rush for artificial intelligence, despite much of that money being used to scrape our portfolios for examples of our work to train the machine that will replace us.

The Congressional Research Service’s report to congress quotes the most well-known cookie-counterfeiter: OpenAI. As it defends itself from accusations that they have committed copyright violations in their training of ChatGPT, they state in their defense as reported by Christopher T. Zirpoli of the Congressional Research Service, “that ‘[w]ell-constructed AI systems generally do not regenerate, in any nontrivial portion, unaltered data from any particular work in their training corpus.’ Thus, OpenAI states, infringement ‘is an unlikely accidental outcome.’”

We stand at a crossroads. The well-lit reflective traffic sign for “Oreo Cookie Tollroad” hovers over a six-lane superhighway, next to a weaving dirt trail that leads off into into the wilderness, where a weather-worn, wooden signpost reads, “Hydrox Trailhead”. 

Meanwhile, lawyers on both sides prepare their opening statements before the court of public opinion and to curry the jury’s favor.

Let us hope, for all our sakes, their main argument isn’t, “Let them eat cake.”

Works Cited

ChatGPT Plus. “Copyright Research” chat transcript. ChatGPT website link. Last accessed October 9, 2023

Fisher, William Weston. “Copyright (law)”. Encyclopaedia Britannica. Fact-checked by The Editors of Encyclopaedia Britannica. Last Updated: Sep 21, 2023. Accessed October 9, 2023

Library of Congress .“U.S. Constitution Annotated: ArtI.S8.C8.1.1 Origins and Scope of the Power”. Cornell Law School Legal Information Institute. (Contributors: Accessed October 9, 2023

Saffitz, Claire. “Pastry Chef Attempts to Make Gourmet Twix”. Bon Appétit YouTube Channel. Uploaded June 13, 2019, accessed October 9, 2023

Sales, Ben. “Hydrox, Original Kosher Sandwich Cookie, Accuses Oreo of Sabotage.” The American Israelite. August 15, 2018. Accessed October 9, 2023

US Congress. “Copyright Law of the United States (Title 17)”. Copyright.gov Last updated December 2022, accessed October 9, 2023

US Patent and Trademark Office. “Patent Essentials”. Accessed October 9, 2023

Zirpoli, Christopher T. “Generative Artificial Intelligence and Copyright Law”. Congressional Research Service. Updated September 29, 2023, accessed October 9, 2023

Image created by DALL-E 3. Prompted thusly, “A robot girl with long, gray curly hair listening to chillhop music, studying with AirPods in her ears, tapping her pencil, while a robot cat sleeps on a windowsill. Outside the window, raw cyberspace pulses and glows, infinite streams of data wind into multiple mysterious horizons. Near-future anime, Appleseed”