Generative AI systems may be creative but aren’t human enough to hold copyrights

Generative Artificial Intelligence can recognize faces, predict and suggest words and phrases, turn drawings into photos and generate artwork. But a U.S. District Court for the District of Columbia held earlier this month that it can’t hold a copyright on any of those works. Thaler v. Perlmutter, 2023 U.S. Dist. LEXIS 145823, *11

The case involved a piece of art entitled A Recent Entrance to Paradise produced autonomously by a generative AI program called “the Creativity Machine.” Stephen Thaler applied for a copyright registration with the Copyright Office for the artwork, which he stated had been “autonomously created by a computer algorithm running on a machine.” Thaler sought to have the copyright registered in his name as a “work-for-hire” because he created and owns the “Creativity Machine.”

The Copyright office denied the application, finding that human authorship is a prerequisite for a valid copyright to issue. Thaler challenged the Copyright Office’s decision as being arbitrary and capricious. The court disagreed.

The court recounted the history of the Copyright Act, which provides that copyright attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed.” 17 U.S.C. § 102(a). While finding that “copyright is designed to adapt with the times,” the court held that “human authorship is a bedrock requirement of copyright.”

The court wrote that the Copyright Act requires a work to have “an originator with the capacity for intellectual, creative, or artistic labor” in order to obtain a copyright. “Must that originator be a human being to claim copyright protection? The answer is yes.”

The court drew a distinction between human expression captured by new technologies such as cameras and artwork generated entirely by a machine. The court noted that a camera is simply the mechanical device used to capture the “mental conception” of the photographer who creates the photo by “posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation crafting the overall image.”

The court held that the Creativity Machine was not eligible to hold a copyright, and therefore one could not be registered in its own name or Thaler’s. In essence the court appears to believe that artwork generated autonomously by artificial intelligence is akin to a human putting tiles printed with words in a can, mixing them up and then spilling the tiles on a table to form phrases. Although a human selected the words to be placed in the can, there was no human selection or arrangement of the words to create the phrases.

The court did not analyze the programming that Thaler had encoded into the “Creativity Machine” that caused it to select certain subjects, colors or visual effects. It seems possible that Thaler’s programming could have been so detailed that his instructions amounted to selecting and arranging draperies and accessories for a photograph, which were captured by the AI program.

The Thaler court’s ruling is the most recent in a line of cases pushing the boundaries of creative works that qualify for copyright protection. One of the most widely known is Naruto v. Slater, in which a copyright infringement lawsuit was filed on behalf of Naruto, a seven-year-old crested macaque monkey living in an animal reserve in Indonesia. 888 F.3d 418 (2018) Naruto used the unattended camera of wildlife photographer, David Slater, to take several photographs of himself, according to Slater.

Slater published the Monkey Selfies in a book, which identified Slater as the copyright owner. People for the Ethical Treatment of Animals filed a lawsuit on behalf of Naruto alleging copyright infringement. The Ninth Circuit upheld the lower court’s dismissal of the lawsuit, holding that “the Copyright Act does not expressly authorize animals to file copyright infringement suits” and therefore Naruto lacked statutory standing.

The Copyright Act does not explicitly state that creative works must be made by a human or that infringement suits may be filed only by humans. However, the court noted that the Copyright Act does have terms that “imply humanity” regarding disposition of copyrighted works. For example, the “children” of an “author,” “whether legitimate or not,” can inherit certain rights under the Copyright Act, as does an author’s “widow or widower.” 17 U.S.C. §§ 101, 201, 203, 304. The court concluded that such terms “necessarily exclude animals that do not marry and do not have heirs entitled to property by law.”

Like the Thaler court, the Naruto court also did not analyze whether the monkey selfies were sufficiently creative to qualify for copyright protection. Undoubtedly, if Slater had taken the monkey photos, he could have claimed a copyright and registered it.

There is sure to be more litigation before the gray boundaries of copyright protection are set. Eventually, a case with the right facts – showing that the programming of a generative AI system was so detailed for the selection criteria and visual effects in a generated piece of art that the AI system will be akin to a camera and such works – will qualify for copyright protection.