Is a graphic designer an artist who refuses to create a website for same-sex couples?

Lawyers for Colorado graphic designer Laurie Smith have refused to create a same-sex marriage website based on her religious beliefs and because she is an artist with free speech. argued in the U.S. Supreme Court. Her attorney argued that being compelled to create the website by state laws against discrimination based on sexual orientation violated her freedom of speech. If she is an artist, the website she creates could definitely be considered a work of art.

At a hearing last December 5, the judge pondered whether there is a difference between an artist delivering a message and a vendor selling goods and services in the marketplace. “This case comes down to a fairly narrow question of how to characterize a website designer,” asked Justice Brett Kavanaugh. “Are they like restaurants and jewelers and tailors, or are they like publishers and other free speech analogues raised on the other side?”

Others in the legal community struggled to solve this riddle as well. “Can designers call themselves artists? “Once you get it working, it gets tricky,” says Michael McCullough, a partner at the firm Pearlstein & McCullough.

Rebecca Tushnet, a professor of the First Amendment Law at Harvard Law School, says that judges in such cases “do [is] to express ideas; and [the] The audience’s comprehension that the idea is being expressed”, which clearly establishes the person as an artist rather than a service provider.

Artists can register their work with the U.S. Copyright Office, but copyright law only identifies who the artist is and what the art is if the image submitted is found to be original. Does not determine if there is a group. Registration with the Copyright Office is determined on a case-by-case basis.

“There are works of graphic design that are clearly copyrightable because they contain the necessary level of originality,” says Silverberg. “In contrast, there are some graphic her design work that are not covered, such as most typeface designs and simple layouts.” By this standard, Smith is perfectly entitled to consider herself an artist, It is unknown if her work will qualify as original her art.

It’s hard to find a definition. Sergio Munoz Sarmiento, a New York art attorney, said, “Since the 1960s, the concept of ‘artist’ has expanded to swallow rules. So if everyone is an artist, then nobody is an artist. ”.He said, “Distributing clean needles or food to the homeless is now considered ‘artistic’ in the realm of contemporary art. laissez-faire One of the reasons web designers and wedding cake designers can claim to be “artists” is practice. “

But when it comes to website designer Lorie Smith, Tushnet didn’t expect:doubt [any ruling] Focus on the cultural role of LGBT rights. “

monkey business

It may be easier to determine who is decisively No an artist. Monkeys cannot be artists, at least not to the extent that macaques and gibbons create things worthy of copyright protection. This he was ruled by a district court in 2016 and confirmed two years later on appeal by the animal rights group People for the Ethical Treatment of Animals (Peta). His 7 year old monkey named Naruto. Peta argued that Slater’s publication and sale of these photographs infringed the monkey’s copyright, but the Court of Appeals ruled that “this monkey, and all animals, are not human beings and are therefore subject to copyright law.” lacks legal status in

According to the Copyright Office, artificial intelligence (AI) also cannot be an artist worthy of copyright protection. In February 2022, he told Stephen Thaler, a scientist and developer of computer systems built to simulate, or behave like, the human brain, called “neural networks.” and made a judgment. Thaler said in 2018 he was seeking to register with the Copyright Office painting-like images generated by a computer via an algorithm he devised. The Copyright Office rejected the original application, and after Thaler requested that its decision be reconsidered, earlier this year it announced that the image “lacks the necessary human copyright” necessary for it to receive copyright protection. I ruled.

The Visual Artists Rights Act (Vara), a 1990 amendment to US copyright law, also does not cover AI-generated art. This law is intended to protect the reputation of (human) artists when their work is intentionally damaged or destroyed. Computers “do not have a reputation,” says Megan E. Know, a New York-based art attorney.

The Supreme Court’s decision in the Lorie Smith case is expected by July.