Artificial Intelligence And Copyright Law: Less Than Meets The Eye

• Published date: 31 August 2023
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: Rimon
• Author: Mr Mark S. Lee

Recent use of artificial intelligence ("AI") to create scripts, books, briefs, and other works has increased public interest in AI-related copyright issues, including:

1. Can AI-created works be protected by copyright law?
2. Can people claim copyright protection in works they create with the assistance of AI?
3. Do the creators of AI infringe copyright when they copy into the AI's "database" third parties' copyrighted works that the AI uses to generate the works it creates in response to user prompts?
4. Do the works AI creates after being trained by those third party copyrighted works infringe those third parties' copyrights?

Judicial evaluation of these issues is only beginning, but variations of them have been asked for decades, and answers are, surprisingly, often not that complicated. Available answers are summarized below.

1. Can AI-created works be protected by copyright law?

No. Case law, commentators, and the government have agreed for decades that a copyright "author" must be a human author, and except for the inevitable contrarian academic dissent, no one has seriously argued otherwise for over 140 years. A brief summary of U.S. copyright law can help understand why.

Most basically, copyright law protects what you create. In the language of the Copyright Act, it protects "original works of authorship reduced to a tangible medium of expression," but does not protect facts, ideas, or commonplace elements of a work.¹

Who owns the copyrighted work after its creation? In the first instance, its "author."²

Must the "author" be a human author? Yes. Almost 140 years of case law holds that only aspects of a work attributable to human authorship qualify for copyright protection.

For example, in 1884 the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony³ held that an image depicting Oscar Wilde created by the "mechanical process" of photography qualified for copyright protection because, and to the extent that, the person taking the picture made creative decisions regarding the picture's composition, including pose, appearance, lighting, etc. made by the photographer.

In 1941 a federal court in New York held in Oliver v. St. Germain Foundation⁴ that a group of revelations the copyright owner said were dictated by a dead spirit were not protectable by copyright law, because there was no human authorship and they were therefore unprotectable "facts." The Ninth Circuit Court of appeals in Urantia Foundation v. Maaherra⁵ more recently affirmed that what the...