No Human Author? No Copyright: Federal Court Confirms AI-Generated Images Are Not Eligible For Copyright Protection

By Patrick B. Monahan

Recent advances in the capability and ease of use of artificial intelligence to create images, text, and even music, have left many asking what the technology will replace in the future and who owns these creations. According to the Copyright Office, and as affirmed by a federal judge in the District of Columbia, “copyrighted author” is not a title that an artificial intelligence system (AI) will be able to claim any time soon.

U.S. copyright law grants a copyright owner a bundle of rights to a creative works that is “fixed in a tangible medium”.  Copyright protection attaches to a work immediately upon that work’s creation. A copyright owner can then apply to register their work with the US Copyright Office.  If the Copyright Office issues a registration, the owner can bring infringement claims in federal court, and they gain various other rights well.

Dr. Stephen Thaler, an artificial intelligence researcher, owns an AI system he calls the “Creativity Machine” which he used to create a visual artwork titled “A Recent Entrance to Paradise”.  Dr. Thaler attempted to register a copyright in that artwork in his own name but named the AI as the artwork’s creator. The Copyright Office refused to register the claim, stating that the lack of a human author of the artwork meant that no copyright protection existed.

After two unsuccessful appeals, Thaler challenged the Copyright Office’s determination in federal court in the case Thaler v. Perlmutter et al, D.D.C. Civil Action No. 22-1564 (BAH) (D.D.C. 2022). In his lawsuit, Thaler argued that the Copyright Office’s refusal to register the artwork was arbitrary and incorrect, that he owned the copyright because he owned the Creativity Machine, or, alternatively, that the copyright was his because the artwork was created for him under the “work for hire” doctrine.

The court sided with the Copyright Office, finding as a matter of law that, because it was created by a non-human author, “A Recent Entrance to Paradise” was not eligible for copyright protection.  In making its decision, the Court followed precedents set in earlier cases addressing the following works in which copyright protection was denied:

  • a collection of messages purportedly transcribed from divine spirits;
  • the growth of a cultivated garden; and
  • a selfie taken by a crested macaque monkey.

Similarly, on the facts presented by Dr. Thaler in the copyright application for “A Recent Entrance to Paradise,” he claimed no creative role in the creation of the artwork.  Instead, he claimed in the application that the Creativity Machine, a non-human entity, was the sole author.  In denying copyright protection, the court specifically distinguished Dr. Thaler’s role from that of a photographer.  As explained by the court, although photography also involves the use of a machine to generate a visual work, the camera’s capture of an image follows the creative composition and selection of the contents of the frame by the photographer.

The key to copyrightable authorship, the court stated, is the presence of a “guiding human hand”. Notably, Dr. Thaler attempted to argue to the court that he actually provided instructions to the Creativity Machine and in doing so guided the artwork’s creation.  However, the court discounted this argument, holding him to the claim as made in the original copyright application, namely, that he played no role in creating the work.

At present, while the Copyright Office will deny registration of works created entirely by an AI, it will allow registration of an AI generated work if the work also contains “sufficient human authorship”, such as where a human creatively selects and arranges materials that are generated by an AI.  However, there are many unknowns. Registration of such hybrid works are handled on a case-by-case basis and the registration would only extend to the human added portion, raising the question of how the underlying (modified) AI work would need to be disclosed and if it would also be in the public domain.

Questions of copyright authorship, and ownership, can be complex, particularly if machine-generated content is involved.  The details of what one claims in their initial application can mean the difference between a registration and a denial.  If you are looking to register a copyright and have any questions, please do not hesitate to contact us!