US federal district court judge rules AI art not copyrightable

By Alvin Wu
Domestic Affairs
US federal district court judge rules AI art not copyrightable

A Recent Entrance to Paradise, generated by the Creativity Machine AI and the artwork at the center of computer scientist Stephen Thaler's unsuccessful challenge to the U.S. Copyright Office's decision. U.S. DISTRICT COURT FOR THE DISTRICT OF COLUMBIA/Legal Filing

Aug. 23 (ZFJ) — AI art generated “absent human involvement” is not eligible for copyright, ruled U.S. District Judge Beryl A. Howell on Aug. 18, Friday.

In her ruling for the federal district court in Washington, D.C., Howell upheld the U.S. Copyright Office’s denial of registration to computer scientist Stephen Thaler for the work he calls A Recent Entrance to Paradise.

BACKGROUND

Thaler, the plaintiff, owns an AI called the “Creativity Machine” that can generate visual works of art.

When he tried to register the artwork, he told the Copyright Office that the AI was the author and the art was “autonomously created by a computer algorithm running on a machine.” He sought exclusive rights to the art for himself “as a work-for-hire to the owner of the Creativity Machine.”

The Copyright Office rejected his application on the grounds that it lacked “the human authorship necessary to support a copyright claim” and that U.S. copyright law only covers works made by humans.

Thaler appealed within the Copyright Office twice but was denied both times for the same reasons. He then challenged the Office’s decision in the district court.

MEMORANDUM OPINION

Howell rejected Thaler’s “work-for-hire” argument on the basis that the Copyright Act of 1976 gives protection “immediately” after a work is created. She notes that this means that if the Register of Copyrights determines a work is not copyrightable, it never had copyright protection, which is what happened in this case.

She then addresses the sole legal question of the case: “whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation.”

“United States copyright law protects only works of human creation,” wrote Howell.

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works.

— U.S. District Judge Beryl A. Howell, memorandum opinion

The judge recognized that generative AI technology is rapidly advancing, raising questions of how much human input is sufficient for copyright protection and how to determine how original AI art is.

“Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works,” Howell wrote.

However, she opined that while copyright law has been flexible in protecting works created by new technology, it has always required a human factor.

“Underlying that adaptability…has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media,” Howell explained.

COPYRIGHT ACT OF 1976

Howell observed that the current version of copyright law protects “original works of authorship fixed in any tangible medium of expression” done “by or under the authority of the author.”

She notes that “author” is not defined in the Copyright Act of 1976 but asserts that the prevailing definition is a human, pointing to long-standing precedent.

She additionally reasons that the point of a copyright system is to “further the public good by incentivizing individuals to create and invent.”

“Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them,” she concludes.

COPYRIGHT PRECEDENT

Howell points out that the Copyright Act of 1909, the precursor to the current Copyright Act, unambiguously said only a “person” could register copyright.

She cited Supreme Court rulings that consistently upheld a human authorship requirement. In Burrow-Giles Lithographic Co. v. Sarony (1884), the Court ruled that photographs can be copyrighted because a photographer had to mentally think of and design an image before using the camera to capture it. The Court also required human creativity in Mazer v. Stein (1954) and Goldstein v. California (1973).

She also cited appeals court cases that required human authorship. The Ninth Circuit did not recognize copyright for a book claimed to be by a “divine” author, and the Seventh Circuit did not uphold copyright for a “cultivated garden.” The Ninth Circuit held in Naruto v. Slater that a monkey could not sue for copyright for photos it took, as it was not human and thus lacked standing.

Howell uses these prior cases to justify her point that copyright law is meant to protect the creative works of humans and not AI.

“NEW FRONTIERS IN COPYRIGHT”

Generative AIs that can create text, images, audio, and other media when given certain prompts have gained significant traction, challenging the bounds of copyright law.

In September 2022, Kris Kashtanova was granted copyright for a comic book called Zarya of the Dawn made with art generated by Midjourney, an AI. The Copyright Office revoked the copyright for the art upon learning it was created by an AI but allowed protection for the arrangement of the art as well as the storyline.

In April 2023, millions of people listened to the song “Heart on My Sleeve,” generated by an AI to sound like singers Drake and The Weeknd before streaming services removed it. Universal Music Group argues that the AI infringed on the musicians’ copyright by using their songs in its training data.

Several artists have sued generative AIs for including their works in lawsuits for copyright infringement that remain pending.

Congress is considering specific legislation to regulate copyright for AI-generated works but has not yet passed any laws on the subject.

The case is Stephen Thaler v. Shira Perlmutter, Civil Action No. 22-1564 (BAH), case number 1:22-cv-01564.

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