Diotima: The Marist Undergraduate Philosophy Journal
unsold paintings that used Cariou’s photographs. However, the case was, effectively, later overturned, finding that all but five of the thirty Prince works did not violate copyright law: “We conclude that the district court applied the incorrect standard to determine whether Prince’s artworks make fair use of Cariou’s copyrighted photographs,” writes Judge B.D. Parker in the decision, which was released this morning. “We further conclude that all but five of Prince’s works do make fair use of Cariou’s copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense.” 27 To say that copyright law is dense, then, is like saying that the Library of Alexandria contained books, but there is a central premise that glues it all together. Principally, it is that ideas are not protectable under copyright, only the expression of an idea. “The idea/expression precept is reflected in different ways depending on the type of creative work…. [i]n art and literature, two people can create a work with the same themes and subject matter, provided that newer work depicts the themes with the artist’s own specifically original imagery or words.” 28 Ultimately, whether or not AI-generated art constitutes an idea or expression has not been established, but legal precedent continues to unfold; a Washington, D.C. court recently ruled that images generated by artificial intelligence cannot be copyrighted, under the basis that only works created by a human author may fall under copyright law. 29 This ruling should be questioned, however. To start, artificial intelligence programs themselves are created and improved upon by human actors. With that in mind, the fact that these same humans may not necessarily be responsible for works or ideas that come from these 27 Brian Boucher, “ARTnews.Com,” ARTnews.com , August 30, 2013, https://www.artnews.com/art-in- america/features/richard-prince-wins-major-victory-in-landmark-copyright-suit-59404/. 28 Ned T. Himmelrich, “Copyright Protects the Expression, Not the Idea | Gordon Feinblatt LLC,” November 17, 2022, https://www.gfrlaw.com/what-we-do/insights/copyright-protects-expression-not- idea. 29 Blake Brittain, “AI-Generated Art Cannot Receive Copyrights, US Court Says,” Reuters , August 21, 2023, https://www.reuters.com/legal/ai-generated-art-cannot-receive-copyrights-us-court-says- 2023-08-21/.
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