On August 18, US District Court Judge Beryl A. Howell ruled that the AI generated artwork cannot be copyrighted. The decision came in Thaler v. Perlmutter, a case in which AI scientist Dr. Stephen Thaler sued Shira Perlmutter, the Register of Copyrights after the Copyright Office refused to register the copyright for a purely AI generated work he had submitted. The court decision supports the Copyright Office’s position that only works authored by human beings can be copyrighted.

How the Case Came into Being

The artwork in question, “A Recent Entrance to Paradise,” was generated in 2012 by Creativity Machine, an AI system Dr. Thaler had created. In 2018, Thaler submitted a copyright registration application for the work, with Creativity Machine listed as the claimant or author. However, on the application, Thaler listed himself as a co-claimant, stating that since he is the owner of Creativity Machine, the work was generated as a work-for-hire to him.  (Thaler’s assertion that the artwork was work-for-hire is puzzling. Under a work-for-hire agreement, the “author” or creator of the work is not that artist who produced it, but rather the hiring entity. However, under copyright law, work for hire agreements must meet certain requirements, including that both parties – the person creating the work and the hiring entity – expressly agree in writing that the work is “work-for-hire”. See the Copyright Office’s circular on Works Made for Hire.)

The Copyright Office rejected Thaler’s registration application on the grounds that the artwork “lacks the human authorship necessary to support a copyright claim” (our italics). Thaler twice requested a reconsideration of his application, stating that the Office’s position is “unconstitutional”. Both requests for reconsideration were refused. In their response, the Office stated “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the [human] mind’”. They also cited numerous Supreme and lower court cases, writing “The Office is compelled to follow Supreme Court precedent, which makes human authorship an essential element of copyright protection.”

Thaler then decided to sue the Copyright Office in District Court, asking the court for a summary judgement on “whether a work autonomously generated by an AI system is copyrightable.” Judge Howell’s ruling rejected Thaler’s argument, stating “United States copyright law protects only works of human creation.” Her decision cited numerous cases in which courts refused to recognize copyright in works created without human involvement, such as claims involving celestial beings, a cultivated garden, and a monkey.

 IP Protection and AI

Thaler has stated that he intends to appeal the court’s judgement. He also has made repeated attempts to have purely AI-generated works receive some form of intellectual property protection. He currently has a case in front of the UK’s Supreme Court, seeking patent recognition for some works his AI system “DABUS” generated. His patent applications in Australia, the EU, and the United States have all been rejected. Last year, he sued the US Patent and Trademarks Office over their rejection of his application, lost that case, and is appealing the decision.

Thaler’s effort are less about extending IP protection to AI works and more about recognizing AI as sentient. Wired Magazine quotes Thaler as saying: “DABUS and all of this intellectual property is not about setting precedents with the law. It’s about setting precedents in terms of human acceptance… There is a new species here on Earth, and it’s called DABUS.”

The belief that AI is sentient is not widely held, and Thaler has been accused of anthropomorphizing his systems. But the emergence of AI has raised fundamental questions on how much human authorship is necessary to make a work copyrightable, and how the copyright system can continue to incentivize creators. For the human artists the most impacted by generative AI, how these questions are resolved is critical.