"The last time the Supreme Court decided whether a work produced using a machine was eligible for copyright was in 1884."

"The case involved a photograph of Oscar Wilde taken by Napoleon Sarony. Rejecting the view that photographs were simply mechanical reproductions, the court recognized that they are 'representatives of original intellectual conceptions of the author.' That is, the author of a photograph is its originator, or the person who 'represents, creates, or gives effect to the idea, fancy, or imagination.'... Had the court excluded photography from copyright, it would not have flourished as profession or art.... This isn’t to suggest that AI-prompted works should be broadly protected. To the extent that creators use common prompts to generate similar images, the scope of copyright should be very thin, to protect against verbatim copying. But there is a big difference between a thin copyright and no copyright at all. Unfortunately, the Copyright Office’s new policy hurts American creators... [who] will bear the brunt of the office’s newfound duty to disclose AI-generated works — and to expressly exclude such works from copyright...."

Writes lawprof Edward Lee, in "A terrible decision on AI-made images hurts creators" (WaPo).

Here's that photograph of Oscar Wilde:

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From the Metropolitan Museum:

Wilde went to America in 1882... to give a series of lectures on the English Renaissance to promote the opening of D'Oyly Carte's production of the Gilbert and Sullivan operetta "Patience," in which aestheticism and Wilde himself were brilliantly satirized. Posing as the ultimate aesthete, or, rather, a caricature of one, Wilde was warmly received and enjoyed tremendous social success... 

Wilde appeared in Sarony's studio dressed in the attire he would wear at his lectures: a jacket and vest of velvet, silk knee breeches and stockings, and slippers adorned with grosgrain bows...

The Met informs us that Wilde's face is "not yet bloated by self-indulgence and high living," which means he looks pretty good here, as opposed to how awful he'd look later. And we're told that the pose expresses "the intelligence and spontaneous charm of the conversationalist" above the "the appearance and calculated pose of the dandy." Who created the image? Wilde or Sarony? It's Sarony who owned the copyright, and certainly someone should. 

This post made me think about my own experience posing in a photograph that got used as if it were a stock photograph. I was irked at getting used, but I did not take the picture, so I was not the owner of the copyright.