When Camille Roux sets out to make a work of art, he often turns to the internet for advice.
“What’s your favorite?” he recently tweeted, sharing four computer-generated variations on an abstract visual theme, along with a poll allowing people to register their preferences. The denizens of Twitter began to weigh in. Some cast a vote without comment, while others offered Roux a rationale. One user said they preferred a particular image over another “because the red makes it look more lush.” The user speculated that they might feel differently if the overall color scheme were different. In response, Roux offered up a new slate of candidates, similar to the original four, but with their dominant lines now dramatically set off against a black background. The dialog continued as Roux considered other possible permutations.
This is one artist’s approach to making “generative art.” Art historians use the term to refer to any art practice in which the artist cedes some control over the final product to a system—like a computer program or machine—that is to some degree autonomous.
Roux enhances his work’s indeterminacy by quasi-crowdsourcing certain artistic decisions, but chance is already incorporated on the level of the work’s code. He provides an input, and the system generates an image as an output. “And every output is absolutely different,” he says. This element of surprise is “a big part of the fun” of making generative art.
It’s also the thing that could make it difficult to obtain copyright protection for his work in the US. Under current law, to the extent that authors are not making individualized creative choices in the production of an artwork, that work is not copyrightable. Someone like Roux—part of a resurgence of generative artists who sell their digital work as NFTs rather than as files on a thumb drive—would automatically have copyright protection for his underlying code, but probably not for the finished product. A work not protected by copyright law or another intellectual property regime is in the public domain—anyone can do just about anything they want with it.
The purpose of copyright, per the Constitution, is to promote the progress of art. The dominant justification for intellectual property among US legal scholars today is the incentive theory, the idea that in granting authors a limited monopoly over their work, we stimulate artistic production by dangling a monetary reward. Without the promise of a payday, the theory runs, creative people would stop creating. But US copyright law does a much better job of accommodating the old model of the lonely genius toiling in solitude than it does collaboration, even collaboration between human authors. When a collaboration extends to include nonhuman authors, the law recoils. While Congress is the body that must ultimately make the decision about copyright’s outer limits, the courts addressed the question of nonhuman authorship a few years ago in the “monkey selfie” case, ruling that animals cannot hold copyright. The US Copyright Office now includes “a photograph taken by a monkey” on its list of things it refuses to register.