US court: AI-generated artwork can’t be copyrighted but leaves open questions

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A US District Court ruled that an artistic work which was created entirely by a generative AI platform cannot be protected under US copyright law, even though an individual creator oversaw its creation.

This aligns with a policy declaration by the US Copyright office this March, saying that “In the Office’s view, it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term “author,” which is used in both the Constitution and the Copyright Act, excludes non-humans.”

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According to the original complaint, Plaintiff Stephen Thaler is “in the business of developing and applying advanced artificial intelligence (AI) systems capable of generating creative output that would historically qualify for copyright protection.”

In November 2018, Mr Thaler filed to register copyright for the image, naming the AI as the author and Dr. Thaler as the owner of the copyright in the work.

AI-generated image. Source: Thaler v Perlmutter Case 1-22-cv-01564, Complaint.

In August 2019, the Copyright Office refused to register the claim based on the lack of human authorship, stating that “We cannot register this work because it lacks the human authorship necessary to support a copyright claim. According to your application this work was ‘created autonomously by machine.’” The refusal did not address Dr. Thaler’s entitlement to any copyright in the Work.

He took the position that denial of the copyright registration was “contrary to the Constitutional mandate to promote the progress of science,” and filed the complaint against Shira Perlmutter, the Register of Copyrights and Director of the US Copyright Office.

In 2019 and 2020, Mr Thaler subsequently filed requests for reconsideration, arguing that “human authorship requirement was unsupported by law” and citing cases in which animals were authors of creative works.  He contended that a comparison between AI and animals was not an “appropriate analogy.”

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Why it matters

On one hand, “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it.”  However, this doesn’t mean that technological tools can’t be part of the creative process.

The Copyright Office has said it is receptive to considering whether or not a work was the result of an author’s “own original mental conception,” or by mechanical reproduction, on a case-by-case basis.  Which could mean that the ultimate answer will depend on whether or not the plaintiff accepts the opinion of the US District Court or re-opens the matter directly with the US Copyright Office.

The outcome may also have an impact on what is interpreted as “piracy” when it comes to AI: if someone copied and incorporated an AI-created work into a subsequent or derivative creation, the answer as to whether that work is protectable under copyright may still be an open question.

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