As new technologies continue to influence the art world, the relationship between art and artificial intelligence (“AI”) is ever evolving. One of the uncertainties in this space has been whether the creators of AI-generated art can claim copyright in their creations, as the current U.S. copyright landscape requires human authorship as a prerequisite to valid copyright ownership. On August 18, 2023, U.S. District Judge Beryl A. Howell upheld a finding by the U.S. Copyright Office that a work of art generated by an AI system is not eligible for copyright, a ruling that affirms the human authorship requirement for copyright protection and will likely have a far-reaching impact in the art world, Hollywood, and beyond. We break down the origins, reasoning, and impact of the ruling below.
How did this case come about?
The opinion comes in response to plaintiff Stephen Thaler’s challenge of the United States Copyright Office’s denial of his application to register his artwork titled A Recent Entrance to Paradise, which was created by Thaler’s AI system dubbed the “Creativity Machine.” Thaler had previously acknowledged in his copyright application that the work was “autonomously created by a computer algorithm running on a machine” and, as the owner of the Creativity Machine, sought to claim copyright ownership of the work as a work-for-hire. The Copyright Office had previously refused to register this work (and affirmed its denial upon Thaler’s subsequent requests for reconsideration) on the basis that copyright protection does not extend to the creations of non-human entities. Thaler then brought this lawsuit against the United States Copyright Office and Shira Perlmutter, Register of Copyrights and Director of the United States Copyright Office. Both parties moved for summary judgment on the issue of whether a work autonomously generated by an AI system (absent human involvement) is copyrightable.
What were the plaintiff’s arguments?
Thaler claimed that the defendants’ denial of copyright registration to A Recent Entrance to Paradise was “arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of Defendants’ statutory authority,” in violation of the Administrative Procedure Act (“APA”). The APA provides for judicial review of any “final agency action for which there is no other adequate remedy in a court”.
How did the court rule?
First, the court explains that the plaintiff “put the cart before the horse” in attempting to present legal theories under which copyright in the AI system’s artwork would transfer to the plaintiff as the system’s owner. As the opinion details, such arguments center on who can register a valid copyright rather than whether a valid copyright ever existed.
The court then turns to “the only question properly presented,” that is, whether the Register acted arbitrarily or capriciously or otherwise in violation of the APA in concluding that no valid copyright existed in Thaler’s work. The opinion states that the Register “did not err” in denying Thaler’s copyright registration application, as “United States copyright law protects only works of human creation.”
Though the opinion acknowledges that “Copyright is designed to adapt with the times,” it also stresses that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media.” The opinion continues to underscore the necessity of human authorship, which it dubs a “bedrock requirement of copyright.” As the opinion explains, “Copyright has never stretched so far…as to protect works generated by new forms of technology operating absent any guiding human hand.”
As the court puts it, “The understanding that ‘authorship’ is synonymous with human creation has persisted even as the copyright law has otherwise evolved.” The Copyright Act of 1909 provided that only a “person” could “secure copyright for his work,” meaning that copyright under the 1909 was “unambiguously limited to the works of human creators.” The court goes on to explain that, as indicated in the relevant congressional report, Congress intended to incorporate the “original work of authorship” standard “without change” from the Copyright Act of 1909 when it enacted the Copyright Act of 1976. In addition, the court points out that the Supreme Court has “consistently recognized” the human authorship requirement when interpreting copyright law.
Because judicial review of a final agency action under the APA is limited to the administrative record, the court’s decision is based on the information available to the Register when it made its decision and Thaler was not able to update or modify the facts. Here, the relevant fact, as set forth in Thaler’s application, is that he “played no role in using the AI to generate the work.” Based on that, the court concluded that because there was no human involvement in the created of the artwork, the “clear and straightforward answer” is that the work is not eligible for copyright.
How does this case differ from other works of art created by machines (e.g., photographs)?
The opinion references relevant cases including the 1884 Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony, in which the Court upheld the extension of copyright protection to photography. The opinion draws an important distinction between Sarony and Thaler’s case by explaining that, in Sarony, the Court reasoned that photographs were copyrightable creations of “authors” because they represented “original intellectual conceptions of the author” even though they were produced by a camera. The Court in Sarony also highlighted decisions made by the photographer, such as posing and arranging the subject. As Judge Howell writes, “Human involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright.” That was not the case for Thaler, whose copyright application failed to assert the requisite human authorship.
What does this mean for future AI-generated works?
In March 2023, the Copyright Office issued its statement of policy regarding works containing material generated by AI. As set forth in the policy, copyright applicants “have a duty to disclose the inclusion of AI-generated content in a work submitted for registration and to provide a brief explanation of the human author’s contributions to the work.” As detailed in the policy, “what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.”
Judge Howell’s opinion acknowledges the “new frontiers” ahead in copyright as artists continue to incorporate AI into their work. As Judge Howell explains, “The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.”
If your institution is looking to commission, acquire, loan, or exhibit AI-generated artwork, our firm can advise you on important considerations to keep in mind in such transactions.
This post published by Gonsowski Law is available for informational purposes only and is not considered legal advice on any subject matter. By viewing blog posts, the reader understands there is no attorney-client relationship between the reader and Gonsowski Law or any of its attorneys. The blog should not be used as a substitute for legal advice from a licensed professional attorney, and readers are urged to consult their own legal counsel on any specific legal questions concerning a specific situation.
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