Judge Rules AI-Generated Art Is Not Copyrightable

• Published date: 29 August 2023
• Subject Matter: Intellectual Property, Technology, Copyright, New Technology
• Law Firm: Thompson Coburn LLP
• Author: Mr Matthew Braunel, Michael Parks and Alex Weidner

In an August 18, 2023 decision, a judge ruled that works generated by artificial intelligence (AI)¹ are not copyrightable. This may have significant ramifications for protecting works created, in whole or in part, by AIs.

Stephen Thaler owns a computer system called the "Creativity Machine," which Thaler alleges generates pieces of visual work of its own accord.² He sought to register a copyright for once such piece titled "A Recent Entrance to Paradise" which is shown below.³

Thaler's application listed the Creativity Machine as the author, and requested that the copyright transfer to him as the owner of the Creativity Machine.⁴ The Copyright Office denied the application on the ground that the work lacked human authorship which, in the view of the Register of Copyrights, is a prerequisite to obtaining a copyright.⁵ Thaler challenged the Copyright Office's decision pursuant to the Administrative Procedures Act by filing suit in the U.S. District Court for the District of Columbia.⁶ Both parties eventually moved for summary judgment on the sole issue of "whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright," and the Court held that the work was not copyrightable.⁷

The Court began its analysis by acknowledging that copyright protection is a naturally arising property of works meeting certain requirements, and a certificate of registration'while conferring certain benefits from an enforcement perspective'"simply confirms that the copyright has existed all along."⁸ Accordingly, the key analysis was whether, fundamentally, an AI generated work met the requirements necessary for copyright to naturally subsist in the work.

While the Court acknowledged a long line of precedent noting that copyright law is malleable enough to "cover works created with or involving technologies developed long after traditional media of writing memorialized to paper,"⁹ it nevertheless noted that such extensions of copyright law still required human involvement.¹⁰ Accordingly, the Court found that "Copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand . . . [because] [h]uman authorship is a bedrock requirement of copyright."¹¹ In support of its conclusion, the Court pointed to cases finding other works uncopyrightable due to the lack of human authorship.¹² Because the work allegedly created by the "Creativity Machine" lacked...