It was a humid day in the Indonesian jungle, and photographer David Slater was following a group of crested black macaques, a critically endangered and particularly photogenic species of monkey.
What came next was nearly a decade of legal battles around an unusual dispute: when something that isn't human makes a work of art, who owns the copyright? Thanks to AI, that's become a issue with some deep implications for modern life – and what it means to be human.
One of the most alarming predictions about AI is that corporations will replace the human-created music, movies and books you love with an endless stream of AI slop. But the US Supreme Court just upheld a decision about AI and copyright which suggests that future may be harder to pull off than the tech industry hoped. The path is still uncertain, and right now, the legal system is the site of a battle that will shape what you read, watch and listen to for the rest of your life. It all traces back to that one little monkey.
Monkey business
The monkey took that selfie in 2011. For a brief, blissful period, Slater enjoyed global attention from the picture, but the troubles began when someone uploaded the photo to Wikipedia, from where it could be downloaded and used free of charge. He asked the Wikimedia Foundation to take it down, arguing it cost him £10,000 (worth about $13,400 today) in lost sales. In 2014, The organisation refused, arguing the photo was in the public domain because it wasn't taken by a person.
The row prompted the US Copyright Office to issue a statement that it would not register work created by a non-human author, putting "a photograph taken by a monkey" first in a list of examples. (Slater didn't respond to interview requests, but his representation arranged for the BBC to use the photo in this article.)
The story gets weirder. Soon after, the advocacy group People for the Ethical Treatment of Animals (Peta) sued Slater on behalf of the monkey. The case argued all proceeds from the photo belonged to the macaque that took the picture, but it was really seen as a test case, an attempt to establish legal rights for animals. After four years and multiple court battles, a San Francisco judge dismissed the case. The judge's reasoning was simple: monkeys can't file lawsuits.
"It was kind of the biggest public conversation piece on this topic," says intellectual property lawyer Ryan Abbott, a partner at Brown, Neri, Smith and Khan in the US. "At the time it was very much about animal rights. But it could have been a conversation about AI." [...]
The missing author
When the US passed the Copyright Act of 1790, we only had to deal with things like writing and drawing. But the invention of photography decades later raised troubling questions. You could argue cameras do the real work, a person just hits a button.
"The Supreme Court looked at this and said, you know, we're going to interpret this purposively," says Abbott, who represented Thaler in a case against the Copyright Office. "Copyright was designed to protect the expression of tangible ideas. And that's broad enough to cover something like photography."
The same logic could apply to AI. "What you really have in photography is exactly the same thing you have here. You have a person issuing instructions to a machine to generate a work," he says. "What's the difference between that and me asking ChatGPT to make an image?"
by Thomas Germain, BBC | Read more:
Image: David Slater/ Caters New/BBC
[ed. More issues than you might imagine.]
