The Copyright of Procedural Art

Traditionally, creative works such as drawings, paintings and other pictures have been protected by copyright law. Procedurally generated art can produce works that mimic a drawing, painting or photograph, but there is a complication in defining the work as an algorithm or a creative work. Copyright does not extend to algorithms, so the questions follows: Is procedurally generated art simply an algorithm that should be treated as such, or is it a creative work that should be covered by copyright law?Procedurally generated content in general is considered to be produced by a program rather than explicitly defined by a data structure.

However, a program itself can be seen as an explicitly defined data structure (Ebert, Musgrave, Peachey, Perlin & Worley, 2003). Even with that in mind, any person could draw the distinction between a photograph rendered by a computer and a similar scene rendered as a 3D scene. This distinction becomes important when copyright law comes into play. Creative works are protected under copyright law.This grants the creator the exclusive rights to copy, distribute and adapt their work as they see fit.

Copyright law in Canada was amended in 1988 to include computer programs as creative works (Makarenko, 2009). Due to this, a procedurally generated piece of art may be protected both as a creative work in its own right and as a computer program. In fact, entire suites of software exist for the sole purpose of creating procedural art (Pixar Animation Studios, 2010). One company may own the copyright for the software, while another may own the copyright for any works they create using the software.This notion of copyright becomes problematic when we examine how procedural art is actually created.

As with traditional art, there are a number of basic actions that can be combined to produce a completed work. For example, an oil painting is the product of mixing colors and placing brush strokes onto a canvas. Using those basic actions a complicated algorithm can be developed to produce myriad finished pieces. Similarly, procedural art is created by combining basic actions, or functions, and manipulating their outputs to produce something more complicated.Ken Perlin has done extensive work in using the output of a parameterized random number generator to create complicated textures, models and animations (Perlin, 1999).

The extent of his work can be summarized as passing the output of his random number generator through a series of functions, all of which can be expressed in a few lines of program code. Perlin makes his simpler algorithms and functions available to the world. According to copyright law, however, his completed programs belong to him and he owns the exclusive rights to reproduce them in whole or in part.This could become a serious issue for a developer who wishes to generate their own procedural art. In 1994 the ruling in one of the most important software copyright cases in the UK, Ibcos Computers Ltd vs Barclays Mercantile Highland Finance Ltd (Ali, 2006), drew a distinction between the general and specific ideas involved in a piece of software. An example in traditional art would be the idea of a painting of a lake.

That idea could be expressed in many ways. There may be trees around the lake or the lake may be an oasis in a desert.The artist would own the copyright on their specific idea of the lake as represented in their painting, not the general idea of a painting of a lake. This distinction works well for very complicated things like a painting, but when applied to a piece of software the distinction is much more vague. In Ibcos Computers Ltd vs Barclays Mercantile Highland Finance Ltd (Ali, 2006) it was found that there had been a literal copying of code on the basis that certain spelling mistakes and pieces of redundant code were found in both parties software. In other situations, however, the distinction is less clear.

John Richardson Computers Ltd vs Flanders (Ali, 2006) was a similar case to Ibcos Computers Ltd vs Barclays Mercantile Highland Finance Ltd. The key difference was that the two programs in question were written in different languages so could not possibly share code. Even so, when their user interfaces were compared there were a number of similarities. The judge ruled that copying had taken place on that basis. This precedent states that, in the UK, the end result of a program is what matters and that its internal function is irrelevant to issues of copyright.Applied to Perlin’s procedural art, this could potentially be dangerous.

If someone wished to obtain similar results to his they would have to be wary of copyright law. Even if they could mimic his techniques without copying any of his code, they would still potentially be found to have violated copyright since the end results would be similar. As well as copyright law, patent law could also be an issue. European patent law expressly prohibits the granting of patents for “programs for computers” (European Patent Convention, 2000). Strangely, the United States takes the opposite stance.

It will not grant patents “consisting solely of mathematical operations, i. e. , converting one set of numbers into another set of numbers, does not manipulate appropriate subject matter and thus cannot constitute a statutory process” (United States Patent and Trademark Office, 2008). This seems very similar to the European system, but there is a key difference.

The US Patent Office will issue a patent for programs with a practical application. To go back to Perlin’s work, any of the individual functions he used could not be patented, since they are solely mathematical operations.A complete program put together that used those operations to produce a piece of art could indeed be issued a patent though. The example involving Perlin is purely hypothetical. His ideas and methods are in use all over the world and he has not pursued any legal action. In fact, his concept of a procedural volumetric hypertexture, a texture defining density in a space, was used in the Pixar movie “Ratatouille” (Pixar Animation Studios, 2010).

Pixar has actually developed their own procedural art framework called Renderman, built to be flexible, robust and able to perform countless procedural functions.They use it to create all their movies. Not only does this exhibit how detailed and complex procedural art can be, it also raises some more copyright and patent issues. If another company were to create a competing product, they would have to be very careful not to violate any laws. First, they would have to make sure they were not reusing any code from the original Renderman. That would mean that anyone on their staff who had worked for Pixar in the past could not write code for the new program.

If similarities were found at some point in the future, having no former Pixar employees writing code would create deniability.There has been research done into development processes like this, where mimicking another product is the goal but there must be no copying (Linger & Trammell, 1996). Second, the hypothetical company would have to make sure that their user interface was noticeably different from that of Renderman. This would create marketing problems.

Renderman has become an industry standard. A new interface would be hard to sell to existing Renderman clients, even with added functionality attached. Finally, the new program would have to be functionally different internally.Similar to changing the user interface, this would potentially create a new workflow for users, limiting the new program’s marketability. These three issues are major obstacles for a new developer who may not have the funding for a legal staff. In essence, the copyright and patent laws as applied to procedural generation of art stifle creativity.

Pixar has given no indication that they would pursue legal action in the face of competition, but there are also no alternatives to Renderman that are as full-featured and powerful.Interestingly, on the Renderman website Pixar states that “RenderMan Support is some of the best in the business” (Pixar Animation Studios, 2010). Their pricing plans include forum support from both support staff and the development team. For an additional fee, they offer telephone and email support. This is notable because it shows that they are not selling a product.

Instead they are selling a service which is to support a product that they happen to develop. With such a business model in place, Pixar has no need for the protections of copyright and patents.They know their software best, having created it, and as such should be able to provide the best long-term support even in the face of competition mimicking their product. In a broader sense, procedurally generated art has several parts, just like traditional art. There is the intent of an artist that is realized by a tool to produce a creative work.

In the realm of procedural art, the tool is the algorithm and should be held the same way we hold a painter’s brush and canvas. Anyone is, and should, be able to pick up a brush and paint what they imagine, but it is only the artists who will be able to produce masterpieces. ?