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Artwork Created by Artificial Intelligence (AI) Not Eligible for Copyright

February 24, 2022

Sunstein | Winning IP View more articles

In 2018, Steven Thaler filed an application to register a copyright for a computer-generated image created autonomously by a computer algorithm, the “Creativity Machine”. (We previously wrote about Mr. Thaler’s unsuccessful attempt to obtain a patent naming an AI machine as the inventor.) The image, entitled “A Recent Entrance to Paradise,” represents a “simulated near-death experience” in which an algorithm reprocesses pictures to create hallucinatory images in creating a fictional narrative about the afterlife.

The application was refused by the U.S. Copyright Office Review Board because it lacked human authorship. After receiving a second request for reconsideration from Thaler, the Board confirmed on February 14, 2022 that human authorship is a prerequisite to copyright protection in the United States and that the image could therefore not be registered.

In doing so, the Board accepted Thaler’s representation that the image was autonomously created by artificial intelligence without any creative contribution from a human. Thaler did not seek to be named the registered author. Thus, the primary issue before the Board was Thaler’s assertion that the human authorship requirement is unconstitutional and unsupported by case law.

The Board, however, understands Supreme Court as viewing the nexus between the human mind and creative expression as a prerequisite for copyright protection, and likewise, reads lower court cases as having "repeatedly rejected attempts to extend copyright protection to non-human creations.”

For example, a book containing words “authored’ by non-human spiritual beings” can gain copyright protection only if there is “human selection and arrangement of the revelations.” Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997). And a monkey cannot register a copyright in photos it captures with a camera, Naruto v. Slater, 888 F.3d 418, 426 (9thCir. 2018).

With advances in artificial intelligence accelerating at an exponential rate, there is no doubt this question will be raised again. Evolution in artificial intelligence will force continued evaluation of what separates creative expression of humans from that of machines, and to what extent machines will remain the servants of humankind.