Tools Do not Create: Human Authorship in the Use of  Generative Artificial Intelligence

Artistic tools, from brushes to complex algorithms, don't create art; human artists do. The advent of generative AI tools like Midjourney, DALL-E, and Stable Diffusion has blurred this understanding, causing observers to believe these tools are the authors of the artworks they produce, even so far as to imagine that the artworks are "created" by the AI in the copyright sense of the word. Not so. The U.S. Copyright Office recently issued guidance on the copyrightability of works produced using generative AI tools. The Office has accepted the narrative that AI tools perform the steps of authorship, conceiving of the image and rendering it into existence, and denying copyright because randomly or automatically generated works lack human authorship. This interpretation of generative AI is fundamentally flawed. Contemporary visual generative AI systems can do extraordinary things, but as of yet not autonomously and not automatically. Generative AI systems are tools-highly complex, deeply technological tools to be sure, but tools none the less. And these tools require a human author or artist-the end-user of the generative AI system-to provide the inspiration and design and often the instructions and directions on how to produce the image.