AI-Generated Image Not Copyrightable, Per D.C. Court
Recently, a federal judge in D.C. agreed with the Copyright Office that artwork generated wholly by artificial intelligence is not eligible for copyright protection for lack of human authorship. The decision leaves unaddressed the more nuanced question of what level of human involvement is sufficient for a work that is generated in part through artificial intelligence to be copyrightable. We cover the decision below.
Background
Inventor Stephen Thaler developed an artificial intelligence system known as “The Creativity Machine.” That AI system produced an artwork titled A Recent Entrance to Paradise. Thaler tried to register this artwork with the Copyright Office. His application identified the author as the Creativity Machine and explained that the work was “autonomously created by a computer algorithm running on a machine.” Thaler identified himself as the copyright owner since he owned the machine that created the artwork.
In 2019, the Copyright Office denied Thaler’s application. Per the Copyright Office, since the artwork was created autonomously by artificial intelligence, it is not eligible for copyright protection because copyright requires human authorship. Thaler requested reconsideration of his application, contesting the Copyright Office’s human authorship requirement; the Copyright Office again refused to register the work under its original rationale. Thaler made a second request for reconsideration, and the Copyright Office Review Board affirmed the denial of registration, agreeing that copyright does not extend to the creations of non-human entities.
D.C. Court Case
Having exhausted his options with the Copyright Office, Thaler sought judicial review of that agency’s decision in federal court in D.C. under the Administrative Procedure Act. The sole legal issue in the case was whether a work created autonomously by AI is copyrightable, to which Judge Beryl Howell answered a firm “no.”
In making this determination, Judge Howell first looked to the language of the Copyright Act of 1976, the current U.S. copyright law. That law provides copyright protection to:
“original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”
While “author” is not defined in the Copyright Act:
The 1976 Act’s “authorship” requirement as presumptively being human rests on centuries of settled understanding. The Constitution enables the enactment of copyright and patent law by granting Congress the authority to “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” U.S. Const. art. 1, cl. 8. As James Madison explained, “[t]he utility of this power will scarcely be questioned,” for “[t]he public good fully coincides in both cases [of copyright and patent] with the claims of individuals.” THE FEDERALIST NO. 43 (James Madison). At the founding, both copyright and patent were conceived of as forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent. The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.
Judge Holwell found this understanding of human authorship has persisted even as copyright law has otherwise evolved. The 1909 Act, the precursor to the modern copyright law, provided that only a “person” could “secure copyright for his work.” Judge Holwell noted that Supreme Court precedent also supports the human authorship requirement. See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) (the recognition of the copyrightability of a photograph rested on the human creator’s use of the camera to conceive of and design the image that the camera captured). Further, courts have uniformly refused to recognize copyright in works created without human involvement, such as works purportedly created by celestial beings or monkey selfies.
As to Thaler’s proffer of various legal theories under which a copyright in the work would transfer to him as the owner of the AI system including the work-for-hire doctrine and common law property principles, the Court claimed those arguments were irrelevant:
These arguments concern to whom a valid copyright should have been registered, and in so doing put the cart before the horse. By denying registration, the Register concluded that no valid copyright had ever existed in a work generated absent human involvement, leaving nothing at all to register and thus no question as to whom that registration belonged.
While Thaler advanced arguments about his personal involvement in the process that led to the artwork’s creation – including in developing the Creativity Machine, using it, and prompting it, Judge Holwell ruled it was too late to make those argument because they were not made before the Copyright Office.
Take-Away Points
Given the Copyright Act’s text and the purpose of the copyright law in incentivizing creators, Judge Holwell easily found that the Copyright Office properly denied copyright registration to a work created autonomously by AI.
But, as the Register of Copyrights has recently stated: “[t]he more difficult cases that are likely to come up in the future will be cases where there is some level of human creativity …[a]nd then the question is, does it rise to the level of authorship under all the case law that’s been developed over the years? So this issue was only going to get more complex and will continue to be before us.”
This issue was recently explored in the Copyright Office’s communications with author Kris Kashtanova and their counsel concerning the registration certificate for the graphic novel Zarya of the Dawn. In deciding that Kashtanova was not the author for copyright purposes of the images generated by Midjourney, the Copyright Office left open the possibility that human involvement, such as editing, could rise to the level of human authorship:
To the extent that . . . Kashtanova made substantive edits to an intermediate image generated by Midjourney, those edits could provide human authorship and would not be excluded from the new registration certificate.
In March 2023, the Copyright Office issued guidance for applicants seeking to register works containing material generated by artificial intelligence. In this guidance report, the Copyright Office explained:
In other cases, however, a work containing AI-generated material will also contain sufficient human authorship to support a copyright claim. For example, a human may select or arrange AI-generated material in a sufficiently creative way that “the resulting work as a whole constitutes an original work of authorship.” Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection. In these cases, copyright will only protect the human-authored aspects of the work, which are “independent of” and do “not affect” the copyright status of the AI-generated material itself.
On August 30, 2023, the Copyright Office issued a notice of inquiry seeking public comment on various questions related to AI and copyright. The Office is conducting a study on the copyright law and policy issues raised by generative AI and assessing whether legislative or regulatory steps are warranted. The notice of inquiry seeks factual information and views on a number of copyright issues raised by recent advances in generative AI. The issues to be explored include the use of copyrighted works to train AI models, the appropriate level of disclosure with respect to the use of copyrighted works, the legal status of AI generated outputs, and the appropriate level of treatment of AI-generated outputs that mimic personal attributes of human artists.
