Intellectual Property

Of Monsters And Men: Who Owns The Copyright In CG Characters?

This is the first of what will be many cases addressing the role of computers, software, and artificial intelligence in the creative process.

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Movies of the comic book, sci-fi, and superhero genres have no doubt dominated multiplexes in recent years. Your Guardians of the Galaxy, your Avengers, your Fantastic Foursomes, your Ant-Men, and et al. have so totally captured the film box office in recent years that one imagines a movie studio’s slate of upcoming films to include nothing more than Batman and Superman Go to Camp, Groot Reads BuzzFeed Articles, Ironman Chef, and so on.

These top-grossing films thrill audiences with their world-saving heroes and heroines and fantastical special effects. But, it appears that certain of these films may also represent something more villainous — a diabolical copyright infringement scheme.

At least that is what Rearden MOVA is claiming in a suite of recent lawsuits. Rearden has asserted in its legal filings that it owns the copyright in the Mova Contour software, which is described in one of the complaints as using “phosphorescent makeup applied with a sponge, strobing fluorescent lights, and an array of 32 cameras … t[hat] create[s] an animated mesh with thousands of points.” MOVA Contour is also described in the papers as “a technology that precisely captures and tracks the 3D shape and motion of a human face to sub-millimeter precision, producing photorealistic results.”

Rearden alleges that this Mova Contour software creates the base on which the defendant film studios created their computer generated (CG) characters. Thus, the CG characters in the films at issue — e.g., Josh Brolin’s Thanos character in Guardians of the Galaxy, the titular Beast from Beauty and the Beast — are unauthorized derivative works that were created by exploiting without permission the MOVA Contour technology and outputs. These outputs, when rendered for display, appear as a detailed 3D capture of an actor’s bust that follows the movement and even wrinkling and stretching of the actor’s skin. It is alleged that the CG characters at issue are derivative works that use these captures as base or source art.

While not typical, Rearden’s claims may carry some weight. To prevail on a copyright claim relating to an unlawful derivative work, the copyright holder must show that it created an original work and that the alleged infringer recast, transformed, or adapted the original work without the owner’s permission. And we know from a number of cases, such as the DC Comics v. Towle “Batmobile” case, that characters, even vehicular ones, are entitled to copyright protection. So, if the original work here is the collection of MOVA Contour output files, which creates the appearance and movement of a character’s bust and skin, and the CG characters were created by building on and adapting the MOVA Contour outputs, then the claim may be meritorious.

But the claim has issues, issues that were raised, strangely enough and albeit obliquely, in the infamous Naruto v. Slater “monkey selfie” case, where the court rightly found that a monkey cannot claim copyright in a photograph it allegedly created because only humans have standing to bring such claims and Naruto was not a human. But, within the arguments raised by the parties was an allusion to a future where plenty of non-humans would be creating original works, mostly via artificial intelligence. If a robot paints a gorgeous watercolor of the Milky Way, who owns the copyright? The robot, a non-human, certainly can’t, per the decision in Naruto. So, who does? Would it be the engineer who created the robot? And would this be effected if the robot, through artificial intelligence, had “learned” to paint on its own, with its output (the painting) resulting from code that was not written or input by the engineer? Heady stuff.

Rearden’s case may run into trouble for the same reason that Naruto the monkey did — the base work at issue was not created by a human, and only humans have standing to bring a claim for copyright infringement. In the seminal Aalmuhammed v. Lee case, for example, the Ninth

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Circuit found that one qualifies as an author if they are the “person who has actually formed the picture” and those who are otherwise part of the creative process giving rise to the picture will likely not so qualify. Here, a computer process, via outputs that are resultant from that process, has “actually formed the picture.” As such it may not matter that the computer process itself was created by a human, is quite artful, and is subject to copyright.

While facts, such as the dimensions of an actor’s face, are not subject to copyright protection, software and computer programming code most certainly is. But copyright protection only inures to the benefit of, as the the Supreme Court wrote in Cmty. for Creative Non-Violence v. Reid, the “person who translates [the] idea in a fixed, tangible expression entitled to copyright protection.” In the end, the case may turn on whether the Court is convinced that it is the Mova Contour software and camera programming, or the Mova Contour software and camera programmer, is responsible for the fixing of the copyrighted work.

And this is the first of what will be many cases addressing the role of computers, software, and artificial intelligence in the creative process. These cases will have major ramifications not only for the film industry, but for the content world in general. As artificial intelligence gains in ubiquity and exponentially increases its ability to learn and develop abstract thought, robots will start creating more original and complex works of art, and the ownership of the copyrights in that art will be a major point of contention and conflict, and one difficult to compute.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

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