In 2015, Google released a new system called “Deep Dream.” It is based on the Artificial Neural Network (ANN) algorithm, which can recognize images and create paintings. The so-called image recognition means using artificial intelligence to select key feature parts of a photo, enhance them, and create a new photo with new features. However, after 10 to 30 layers of artificial neurons interpreting the image, this system may produce a result that is far from the original image. According to Google engineers, horizons may become pagodas, trees may become skyscrapers, and leaves may turn into insects or even birds.[1]
(Image source: Google Research)
Based on Google’s Deep Dream algorithm, Ostagram can learn the “painting style” of artworks and turn any photo into a “painting.” First, we need to upload the photo to be processed and then select a filter image. There are two ways to obtain filter images: from the system or uploaded by the user. In addition to choosing a filter style provided by the system, we can also upload any image, including our own paintings. The system will automatically generate an image in that style based on the filter photo we select or provide. This composite result is fundamentally different from the filter effects of image processing software; it looks very natural, and the styles are diverse, capable of synthesizing almost any style of image you desire.
This technology has already allowed us to recognize the magical aspects of artificial neural network algorithms, and an experiment led by the University of Tübingen in Germany has further elevated this dynamic technology. It improved the shortcomings of the Google Deep Dream algorithm, which has difficulty accurately capturing features, resulting in “trippy” images or dynamic visuals, by transforming ordinary photographs into works of abstract art. This technology uses convolutional neural networks to divide images into different style and content components. In turn, they can use neural networks as general image analyzers, creating new works that integrate the style of one image with the content of another. As shown in the image below, combining a photo of astrophysicist Neil deGrasse Tyson with the style of Kadinsky’s “Jane Rouge Bleu” can convert the photo into a painting-style image.[2]
(Image source: Bing Images)
This type of technology utilizes neural network algorithms to create a new artistic image based on the chosen artistic style, using the input image as a foundation. This paper will discuss whether this new artistic image constitutes a work protected by copyright law.
2. Application of the Standard of Originality in Works
The second article of the Copyright Law Implementation Regulations states: Works referred to in copyright law are intellectual achievements in the fields of literature, art, and science that possess originality and can be reproduced in some tangible form. The most important and fundamental characteristic for a work to be protected by copyright law is to have originality. Therefore, to discuss whether the new artistic images obtained through neural network algorithms constitute works, we must first see whether they possess originality. However, there is currently no unified understanding of the standard of originality in academic and practical circles.
(1) Ununified Understanding of Originality in Academia
Different legal systems have different understandings of the originality of works. Germany, as a representative country of the relatively high legislative level of the continental legal system, has strict requirements for originality. German professor Ulrich Lewinheim believes that “originality” should include the following characteristics: First, there must be creative labor that produces the work; Second, the work should reflect human intelligence, thought, or emotional content that must be conveyed through the work; Third, the work should reflect the creator’s personality, bearing the imprint of the author’s unique intelligence; Fourth, the work should have a certain level of creativity, which is the lower limit for copyright protection.[3] In contrast, the Anglo-American legal system has a different understanding of originality. American scholar Nimmer believes that even the results of the most common and clichéd efforts may be protected by copyright, as long as the effort is not trivial.[4]
In China, the understanding of originality also varies widely. Some scholars argue that the originality of a work refers to the independence of its creation. This viewpoint suggests that when copyright protection first emerged, its original intention was to protect the interests of publishers. As time has passed and society has developed, modern copyright law has formed, which should focus on protecting the rights of authors. Overemphasizing creativity would unjustly exclude some works from copyright protection. As for whether a certain degree of creativity is required, this scholar believes that independent creation by the author will naturally form “a certain degree of creativity,” and adding “a certain degree” would only complicate the standard for judgment. Some scholars argue that the originality of a work has two layers of meaning: one is “relatively independent” creation, which does not exclude the citation or reference of others’ works, but requires that the work must be created by the author through complex intellectual labor. In addition, originality also requires a certain level of creativity, which must be an innovative development or advancement. They suggest that we can learn from the experiences of Germany and the United States, interpreting “creation” as requiring a certain level and height, but we cannot provide a unified standard for measuring this level and height. Other scholars believe that the originality of a work first implies “independent completion” and also means that the work is the result of the author’s creative intellectual labor, possessing creativity and reflecting the author’s personal characteristics. However, this creativity is different from the creativity required by patent law; the creativity of a work does not require novelty as a prerequisite, and this creativity only requires that there is a difference in form of expression from existing works, regardless of whether it is a reproduction of existing knowledge.
(2) Differences in Understanding Originality in Judicial Practice
In the copyright infringement dispute case between Beijing Zhonghang Zhicheng Company and Shenzhen Feipengda Company, the first instance court and the second instance court had completely opposite understandings of originality. The plaintiff, Zhonghang Zhicheng Company, is the sole manufacturer and supplier of the aircraft model in question. The plaintiff discovered that the defendant, Feipengda Company, was producing and selling the accused infringing products, believing that the aforementioned actions constituted an infringement of the copyright of the “J-10 Aircraft (Single Seat)” held by Zhonghang Zhicheng Company. During the trial, the court conducted an in-depth discussion on whether the aircraft model constituted a work.
The first instance court pointed out when determining whether the aircraft model constituted a model work: According to the second article of the Copyright Law Implementation Regulations, works in the meaning of copyright law must possess originality, which means meeting the requirements of “independent completion” and “creativity.” The so-called “independent completion” requires that the work should originate from the author, and it should be produced by the author’s independent conception and creation, rather than imitating or copying others’ works. The “J-10 Aircraft (Single Seat)” model claimed by Zhonghang Zhicheng Company is made by scaling down the “J-10 Aircraft (Single Seat)” proportionately, indicating that the claimed aircraft model belongs to a precise reproduction of the “J-10 Aircraft (Single Seat)” and is not independently created by Zhonghang Zhicheng Company, thus failing to meet the requirement of “originality” in copyright law, and therefore does not belong to a work in the meaning of copyright law. However, the second instance court held an opposite view on this issue. According to the thirteenth item of the fourth article of the Copyright Law Implementation Regulations, a model work refers to a three-dimensional work made for display, testing, or observation purposes, according to the shape and structure of an object and made at a certain scale. Therefore, model works are made by enlarging or reducing an object by a certain proportion. To achieve the purposes of display, testing, or observation, the closer the model is to the original, the higher its originality.
In this case, the first and second instance courts had a disagreement on where originality is manifested. The first instance court believed that the aircraft model was obtained by proportionally scaling down the aircraft (single seat) and was not independently created by Zhonghang Zhicheng Company, thus not meeting the requirement of “independence” and therefore lacking originality. However, the second instance court overturned this determination, believing that the originality of the model work is precisely manifested in its proximity to the original object; the closer the model is to the original, the higher its originality. The two courts in this case have different interpretations of the creativity represented by the word “creation” in originality. The aircraft model produced by Zhonghang Zhicheng Company is based on the aircraft (single seat) as a model and scaled down proportionally, which can be said to be difficult to meet the standard of “independence.” Moreover, in the process of making the model by scaling down the original object, no creative activity has been injected. Therefore, the viewpoint held by the second instance court is debatable.
The Supreme People’s Court explained the understanding of originality in the case of Zhang Xiaoyan vs. Lei Xianhe, Zhao Qi, and Shandong Aishuren Audio-Visual Publishing Co., Ltd. regarding copyright infringement. The plaintiff, Zhang Xiaoyan, claimed that the defendant’s script and TV series “The Last Cavalry” plagiarized her script and TV series “Plateau Cavalry Company.” The second instance court separated the themes, storylines, character settings, etc., of the original and defendant’s scripts and TV series and determined each part separately, denying the defendant’s adaptation and plagiarism by stating that “public domain materials or lack of originality in expression should not be exclusively owned by Zhang Xiaoyan.” The Supreme Court overturned this determination, stating that if the aforementioned aspects of any work are looked at separately, they are almost all derived from public domain materials and lack originality in expression. However, the public domain materials, after being creatively combined by the author, constitute a complete work protected by copyright law. The intellectual creative activity of the author on these originally public domain materials results in a unique arrangement that reflects the author’s distinct personality, which is the source of the work’s originality. The second instance court’s approach of separating and determining originality is biased. Copyright law does not require that the content of a work be unprecedented; the author can base their work on certain references and borrowings, but the work itself must be independently completed through the author’s creative labor. Whether the created work is similar to existing works is not a consideration; even if the work is similar to existing works, as long as it is independently created by the author, it may possess originality. Although Zhang Xiaoyan’s work indeed drew from public domain materials, the completed work after her adaptation and creation already possesses originality and should be protected by copyright law.
(3) Clarification of the Standard of Originality
Although the understanding of originality differs between academia and practice, the prevailing viewpoint in Chinese academia is that the originality required for works not only means that the work should be independently created by the author but also requires a certain level of creativity. The statement from the Supreme Court above also indicates that originality is reflected in the author’s creative activities regarding the materials used. Regardless of whether the materials for creation are public domain content, as long as the author integrates their personal choices into the creative process, the result should be considered original. At the same time, when determining the originality of a work, one should not segment the work into multiple parts and compare them individually. Given the vast literary wealth left by predecessors, it is difficult to guarantee that our creative results do not bear content similarities with those of predecessors. To promote the prosperity of cultural endeavors, creating on the basis of predecessors is also an encouraged behavior under copyright law. Therefore, the creativity of a work does not exclude the reasonable use or borrowing of others’ works, as long as it incorporates personalized creativity and does not infringe upon others’ legitimate rights. It can be said that independent completion and personalized creation by the author are essential elements of originality. However, the definition of creativity and how to delineate its height has become a challenging issue to reach a consensus on.
We can divide originality into two parts: “independence” and “creativity.” “Independence” means originating from oneself, and the work is independently created by the author. There are two situations that meet the requirement of “independence”: First, the work is created by the author from nothing; second, it is recreated based on existing works.[10] In the first case, the work is created through the author’s effort without prior foundations. If different people coincidentally create the same work independently, they should each enjoy independent copyright. The Supreme People’s Court’s interpretation of some legal issues in copyright civil dispute cases states: Works created by different authors on the same subject matter, where the expression is independently completed and creative, should be recognized as each author enjoying independent copyright. There are always differences in the internal thoughts and external expressions, and even if the results are the same or similar, as long as it can be proven that they were independently completed, it does not hinder the enjoyment of independent copyright. For the second situation, the author can recreate based on others’ works, and the main outcome of the recreation must have identifiable differences from the original work, which still meets the requirement of “independence.” If the differences are too minute, it can only be regarded as a copy of the original work and cannot be considered as the product of the subsequent creator’s labor.
Determining originality primarily differs in the understanding of “creativity.” The Anglo-American legal system and the continental legal system have different requirements for “creativity.” Early Anglo-American law only required that the author put in some effort to form “creativity,” although it gradually raised the height requirement for “creativity” later, it remains relatively low. In contrast, the continental legal system has much higher demands for “creativity.” German scholar Reinhold argues that “creation must belong more to the realm of one’s own work type than what ordinary intellectual labor can bring.”
Our copyright law draws from both the continental and Anglo-American legal systems; the Copyright Law Implementation Regulations have made explicit provisions for originality, but have not specified its connotation and standards, which leads to difficulties in applying clear standards for determining the height of originality. However, it is clear that our copyright law requires a certain level of creativity. “Skill-based intellectual achievements” and “mechanical intellectual achievements” should be excluded. If one copies a fine art piece, even if the author invests a high level of skill, it does not possess originality as it is merely a reproduction of another work. Similarly, works completed according to certain sequences, formulas, or structures will yield the same results from different people’s intellectual labor; this expression has uniqueness and should not be recognized as possessing originality.[13] Even in cases where the requirements for originality are extremely low, and the standard of “sweat on the forehead” has not been abandoned, English case law points out: “Re-drawing an original drawing with only minor visual differences cannot constitute an original artistic work… Creating a perfect copy of a fine art piece or a large-scale photo requires great skill, judgment, and labor, but no one would consider the copy of an oil painting or a large-scale photo as an ‘original’ artistic work that can obtain copyright protection.”[14] Therefore, the judgment of creativity is necessary, but the height of “creativity” should not be so trivial that it becomes difficult for people to notice.
3. Analysis of the Work Attributes of Artistic Images Created by Neural Network Algorithms
The artwork styles generated by the neural network algorithm developed by the University of Tübingen undoubtedly represent a breakthrough technology. The images produced by this technology take the user-selected image and apply the style of a particular image, thereby retaining the original content while making the details resemble another painting. To understand whether the newly formed artistic image constitutes a work in the meaning of copyright law, we must first see if it meets the characteristics of “originality.”
First, do the output artistic images meet the requirements of “independence”? “Independence” can refer to creation from nothing or recreation based on prior works. The images drawn using the neural network algorithm are based on existing images we input, and through the system’s calculation of the features of another image, ultimately outputting an image with a specific artistic style. This belongs to the second situation of “independence.” However, this also raises the question: Is the output result a product of human intellectual activity? Whether from nothing or based on a prior work, “independence” requires “creation.” Creation refers to the intellectual activity that directly produces literary, artistic, and scientific works, reflecting one’s understanding of the objective world, and the subject should be a human. We input good images, select a desirable artistic style, and the neural network algorithm performs calculations to output the result. Our work only involves selecting two images, and the remaining work is done entirely by the computer. Just by selecting two images, it is difficult to say that the artistic image is created by humans.
In this model, there are mainly three situations that may meet the requirement of “independence”: First, the images we input are those that we have taken or created ourselves, which are then transformed into artistic works by the neural network algorithm. In this case, the characteristic of “independence” arises from the fact that the input images are independently captured or created by ourselves; therefore, when we select an artistic style for the output result, it may meet the requirement of “independence.” Second, the image we select as the template for artistic style imitation is one we have drawn ourselves. By using our created artistic images to transform the input images into similar styles, the artistic style we impart to the output image meets the requirement of “independence.” Third, both the initially input image and the image we choose as the imitation template are created or captured by ourselves. Other situations are difficult to reflect the “independence” required by originality.
Second, do the new artistic images reach a certain level of creativity? Professor Liu Chuntian pointed out: “The completion of a work should be the result of the author’s own choices, arrangements, designs, integrations, and descriptions, neither copied from existing forms nor derived from predetermined patterns or procedures.” Imagine if the images we input were randomly selected from the internet, resources in the public domain are difficult not to be discovered by others; therefore, other people are very likely to choose the same images, and it is hard to exclude others from selecting the same artistic style and going through the same neural network algorithm calculation, thus ultimately outputting the same image. Merely choosing images twice is unlikely to reflect “creation.” Therefore, we should evaluate “creativity” under the premise of satisfying the aforementioned “independence.” “Creativity” requires that the new image should not be too similar to the original image. For example, regarding the originality of fine art works, if someone attempts to create a perfect imitation of a masterpiece but fails due to poor technique, resulting in significant visual differences from the original artwork, it should be considered that this person has “infused their own choices and arrangements.” In contrast, the images drawn by neural network systems indeed exhibit significant differences from the original images that can be objectively recognized by the naked eye; the main issue is whether this difference meets the standard required for “creativity.”
The first situation with “independence” means that the input image is taken or created by the individual. Since our country has a low requirement for originality in photographs, generally speaking, if the image is a photograph, it possesses originality; thus, when further artistically processed, it will also possess creativity. This situation is similar to processing the image in Photoshop, where the rights to the artistic image are based on the prior copyrighted photograph. If the image is a painting created by the individual, then we must consider whether it possesses the aesthetic significance required of fine art works. The Copyright Law Implementation Regulations clearly state that fine art works are those that are composed of lines, colors, or other means to form aesthetic significance in flat or three-dimensional artistic works. The reason fine art works can obtain protection under copyright law is due to the “aesthetic significance” of the work. The aesthetic significance or level of beauty of fine art works refers to the degree of artistic quality achieved by the work through various artistic means reflecting social life and expressing thoughts and emotions. Aesthetics mainly reflects the degree to which the artist’s aesthetic intention is achieved through lines, colors, light effects, layout, and contrast.[18] However, we need to clarify that individual aesthetic levels vary; for professionals, only the works of masters may be considered art; however, works that lack aesthetic value from a professional perspective may still hold appreciation value for ordinary people. Therefore, the requirements for originality in fine art works should not be too high; down-to-earth art should also be protected by copyright. Thus, in such situations, if the input image is a photograph taken by oneself, the output new artistic image should be classified as a photographic work; if the input image is a painting created by oneself, the new artistic image should be classified as a fine art work. Similarly, the second situation with “independence” can be seen as applying one’s artistic style to a photo or applying the artistic style of one’s painting to an image; therefore, the right holder can choose to have it protected as either a photographic work or a fine art work.
(This topic was organized and written by Song Xiaoshan, a graduate student of Intellectual Property at East China University of Political Science and Law, Class of 2016)
Originally published in “Eastern Intellectual Property” Issue 59
[1] http://www.wtoutiao.com/p/1aduVAo.html, accessed on October 3, 2016, 21:25.
[2] http://innovation.ifeng.com/frontier/detail_2016_03/03/4781417_0.shtml, accessed on October 4, 2016, 9:49.
[3] [German] Ulrich Lewinheim: “The Concept of Works,” translated by Zheng Chong, “Copyright,” Issue 3, 1991.
[4] Melvile B. Nimmer & David Nimmer, Nimmer on Copyright, Matthew Bender & Company, Inc., 2003, §2.01.
[5] Zhang Guangliang: “The Determination of Originality of Works in Judicial Practice,” “Legal Application,” Issue 8, 1995, page 11.
[6] Song Shenhai: “On the Originality of Works,” “Law Science,” Issue 4, 1993, pages 26-27.
[7] Feng Xiaoqing and Feng Ye: “On the Definition of Originality of Works in Copyright Law,” “Journal of East China University of Political Science and Law,” Issue 5, 1999, page 36.
[8] Civil Judgment of Beijing Higher People’s Court (2014) Gao Min (Zhi) Zhong Zi No. 3451.
[9] See Supreme People’s Court ruling (2013) Min Shen Zi No. 1049.
[10] Wang Qian: “Intellectual Property Law Tutorial” Fourth Edition, Beijing: China Renmin University Press, 2014, page 28.
[11] Wang Qian: “Intellectual Property Law Tutorial” Fourth Edition, Beijing: China Renmin University Press, 2014, page 29.
[12] [German] M. Reinhold, translated by Zhang Enmin: “Copyright Law,” Beijing: Law Press, 2004, page 117.
[13] Liu Chuntian: “Intellectual Property Law” Second Edition, Beijing: China Renmin University Press, 2002, page 49.
[14] Wang Qian: “On the Qualification of Proportional Models in Copyright Law—Also Commenting on the ‘First Case of Aircraft Model Copyright Infringement,'” “China Copyright,” Issue 4, 2015, page 7.
[15] http://baike.baidu.com/view/263909.htm, accessed on October 7, 2016, 19:29.
[16] Liu Chuntian (editor): “Intellectual Property Law” (Fifth Edition), China Renmin University Press, 2014, page 54.
[17] Liu Chuntian (editor): “Intellectual Property Law” (Fifth Edition), China Renmin University Press, 2014, page 54.
[18] http://baike.baidu.com/view/78869.htm, accessed on October 7, 2016, 18:49.
