District Court Rules That AI-Generated Works Cannot Be Copyrighted

• Published date: 31 August 2023
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: Morrison & Foerster LLP
• Author: Daphne Higgs, Aaron Rubin, Tessa Schwartz and Heather M. Whitney

The D.C. district court recently affirmed the U.S. Copyright Office's position that a work generated entirely by artificial intelligence (AI) technology is not eligible for copyright protection. The case is Stephen Thaler v. Shira Perlmutter and The United States Copyright Office (1:22-cv-01564) (June 2, 2022).

Dr. Stephen Thaler had challenged the U.S. Copyright Office (USCO) over its denial of his copyright registration application for an image known as "A Recent Entrance to Paradise." The image, Thaler told the USCO, was created solely by an AI tool called the "Creativity Machine" without any human authorship.

The Thaler decision is unlikely to have direct impact on a significant number of applications for copyright registration. There are not many applicants trying to register works "autonomously created by a computer algorithm running on a machine" without any human authorship. But the decision does raise the question of how much human input is necessary to qualify the user of an AI system as the "author" of a generated work. While that question was not before the court, the court's dicta suggests that some amount of human input into a generative AI tool could render the relevant human an author of the resulting output.

Key Takeaways

• A work generated entirely by AI is not eligible for copyright. The court stated that "human authorship is a bedrock requirement of copyright."
• Other than the dicta in Thaler noted above no court has yet addressed whether (and if so, when) a human's use of generative AI tools to create content will result in a copyrightable work. This raises the question of whether works created using AI tools can be protected against infringement at all. Looking into the future, defendants accused of infringing works created using AI tools are bound to argue that the works are not protected by copyrights at all. We discussed the copyrightability of outputs from generative AI tools in a previous client alert.
• The Copyright Act's "work made for hire" doctrine is not an exception to the human authorship requirement. Thaler unsuccessfully asserted that non-human authorship is already recognized in the work made for hire context (since in the work made for hire context, copyright can vest in a (non-human) company in the first instance and not in the (human) author). Creativity Machine was, Thaler argued, like his employee, and any copyrights in the Creativity Machine's works should vest immediately in him. Neither the USCO nor district court were convinced.

The Impact of the "How Much Human Input" Issue

Thaler did not address how much human authorship is necessary to make a work generated using AI tools copyrightable...