AI-Generated Works Cannot Be Copyrighted Because They Lack Human Authorship

One of the hot-button issues that generative artificial intelligence (AI) has raised is whether works created by AI engines are copyrightable. In one of the first decisions on this issue, the D.C. District Court recently found that works created solely by AI engines are not eligible for copyright protection.

The case centered around an image created by an AI engine called the Creativity Machine, which was established by Stephen Thaler. Dr. Thaler applied for a copyright to cover the work created by the AI engine — a generated piece of visual art titled “A Recent Entrance to Paradise,” depicting train tracks going through a tunnel covered in flowers. In his copyright application, Dr. Thaler explained that the work was “autonomously created by a computer algorithm running on a machine,” listing the Creativity Machine as the author. He then requested that the copyright be transferred to him as the machine’s owner. However, the Copyright Office rejected his claim because the work lacked human authorship, a prerequisite under the copyright laws.

On appeal, Judge Beryl Howell affirmed the Copyright Office’s rejection, stating that the petitioner could “point to no case in which a court has recognized copyright in a work originating with a non-human.” The District Court refused to “stretch” copyright protection to “protect works generated by new forms of technology operating absent any guiding human force.”

In explaining the holding, Judge Howell acknowledged that “malleability is explicitly baked into the modern incarnation of the Copyright Act,” stating that copyright laws “adapt with the times” and can extend to all “original works of authorship fixed in any tangible medium of expression, now known or later developed.” However, she found that this adaptability did not extinguish the need for human creativity in obtaining a copyright, which she described as the “core of copyrightability.” Human authorship is still a “bedrock requirement of copyright.”

While Judge Howell decided this issue where there was admittedly zero human intervention used in the creation of the work, she recognized the challenging legal issues that have yet to be decided based on varying levels of human direction in the creation of works. Specifically, Judge Howell stated that “we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new … works.” Judge Howell also noted that the “increased attenuation of human creativity from the actual generation of the final work” would create “challenging questions” such as (1) “how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work,” (2) “the scope of the protection obtained over the resultant image,” (3) “how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works” and (4) “how copyright might best be used to incentivize creative works involving AI.”

What level of human involvement is required for copyright protection will be a key issue for AI-generated works going forward in light of this new and emerging technology. These are difficult questions and surely must be addressed as AI is further integrated into our society. Whether this will be decided by case law or legislation remains to be seen. In the interim, the Copyright Office has provided some initial guidance on this topic that provides that it must determine if the “traditional elements of authorship in the work” were “actually conceived and executed not by man but by machine.” Just how much human influence is required will undoubtedly be a case-by-case inquiry. In fact, the question of the originality of AI-generated works where preexisting works have trained AI is already the subject of multiple pending lawsuits.