By: Brooke Gary
Artificial Intelligence (“AI”) has become increasingly prevalent in the art world, as computers are now able to write poems, paint portraits, and produce music. Originally, computer-generated works of art relied heavily on the creative input of the programmer and acted simply as a tool similar to that of an artist’s paintbrush or pen. However, today, AI can produce autonomous systems that are capable of learning without being specifically programmed by a human. While these new forms of AI are able to successfully generate works of art without human intervention, this machine-driven creativity has significant implications on copyright law.
Recently, the United States Copyright Office refused to reconsider Steven Thaler’s second request to register a copyright for an image made by an artificial intelligence program called Creativity Machine. In 2018, Thaler filed an application to register a copyright claim for an AI artwork piece titled “A Recent Entrance to Paradise” (“Work”). The Work is part of a series Thaler describes as a “simulated near-death experience” in which an algorithm reprocesses pictures to create hallucinatory images and a fictional narrative about the afterlife. In his copyright application, Thaler identified the author of the Work as the “Creativity Machine” and listed himself only as the claimant and owner of the machine. Thaler also left a note for the Office stating that the Work “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”
The U.S. Copyright Office previously rejected Thaler’s copyright claims in 2019 and 2020. The Office asserted that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the human mind’” and that Thaler’s Work lacked such necessary human authorship. In his most recent reconsideration request in February 2022, Thaler argued that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.” More specifically, Thaler asserted that there is no binding authority that prohibits copyright from computer-generated works and that, regardless, registering such copyrights would best promote the underlying goals of copyright law–to promote the progress of science and useful arts. Despite Thaler’s attempts for reconsideration, the Board has upheld its decision and asserted that “the nexus between the human mind and creative expression” is a vital element of copyright.
In its most recent ruling against Thaler, the Copyright Review Board’s three-person panel responsible for hearing final administrative appeals countered Thaler’s argument that the requirement for human authorship is unsupported by case law and asserted that courts have uniformly limited copyright protection to creations of human authors. For instance, in 1997, a federal appeals court ruled that a book allegedly authored by non-human spiritual beings could only gain copyright if a human-curated the revelations or there existed some other element of human creativity. In addition, another court found that a monkey couldn’t register a copyright in photos it captured with a camera because the Copyright Act refers only to humans and thus excludes animals. Ultimately, while no court has directly addressed the question of whether AI can be considered an author for copyright purposes, courts have been consistent in finding that “non-human expression is ineligible for copyright protection.” Thus, because Thaler failed to either provide evidence that the Work was the product of human authorship or convince the Copyright Office to depart from longstanding copyright jurisprudence, the Board has refused to grant his copyright.
When it comes to copyright protection, it is important to make the distinction between art that is created with an AI component, and art that is created solely by machine without any human creativity. In Thaler’s case, he emphasized that humans weren’t meaningfully involved in the creation of the Work, with the intention of proving that machine-created works could receive protection. However, if someone tried to copyright a similar work by claiming it was a product of their own creativity that was simply executed by a machine, the outcome would likely look different as there would be a stronger argument that the work contained an element of human authorship and creativity.
Nevertheless, the law’s refusal to grant copyright to autonomous machine-created works could have far-reaching commercial implications. Thaler’s case arrives as artists are increasingly using AI to help generate artwork that has significant commercial value, including works produced by autonomous machines. For instance, an AI-authored painting sold for $432,000 at auction in 2018. Other projects have involved computers writing poems and short novels, editing photographs, generating music, and even composing a musical. The U.S. Copyright Office’s refusal to grant copyright protection to these sorts of AI-generated works threatens to stand in the way of people developing machines that are going to make socially-valuable creative works. Ultimately, individuals–knowing that their work won’t receive protection and could be freely used and reused by anyone–may be less incentivized to invest in automated systems and generate such creations through AI.
Ryan Abbott, the attorney representing Thaler, argues that the U.S. “should be a global leader in promoting AI development.” Courts in other countries, such as China, have been willing to attribute authorship of AI-generated works to the creator of the AI program and thus grant copyrights to autonomous AI. Meanwhile, the U.S. Copyright Office still refuses to depart from legal precedent that human authorship is required for copyright registration. However, there is potential for change and the future of copyright for AI-generated works will likely be decided as Thaler plans to appeal the board’s decision in federal court in Washington, D.C.
Student Bio: Brooke Gary is a second-year law student at Suffolk University Law School. She is a staffer on the Journal of High Technology Law. Brooke received a Bachelor of Arts Degree in English and Government from Colby College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
