Industry News

U.S. Copyright Office: Randomly Generated AI Artwork Isn’t Protected

February 9, 2023

By Hillary K. Grigonis

© metamorworks

Can artwork created randomly by artificial intelligence be copyrighted? The U.S. Copyright Office says the answer is no. On Tuesday, Feb. 7, the U.S. Copyright Office asked the federal courts to dismiss a lawsuit filed by Dr. Stephen Thaler over a denied copyright application for an illustration created by an artificial intelligence program. In a response to the plaintiff’s motion for summary judgement, the Director of the United States Copyright Office Shira Perlmutter argued that the refusal to grant a copyright to a non-human is consistent with current laws.

In June of 2022, Stephen Thaler, a software engineer and the CEO of Imagination Engines, Inc. filed a lawsuit asking the courts to overturn the U.S. Copyright Office’s decision to deny a copyright for artwork entitled “A Recent Entrance to Paradise.” On the copyright application, the author was listed as “Creativity Machine,” an AI software. Thaler was listed as the owner of the copyright because he is the owner of the software. The ongoing case, Thaler v. Perlmutter, was filed in district court in the District of Columbia.

[Read: Photographers and AI: Who Owns the Copyright?]

Thaler argued that he could own the copyright when the computer is the artist, similar to “work for hire” contracts where a hired artist can be listed as the author while the company still owns the copyright. In his request for summary judgement filed in January, Thaler argued that the Copyright Act doesn’t limit copyright to human-made art. He argued that, like the owner of a cow also owns its calf and the owner of a 3D printer owns the work it creates, he should also own the art that his software created.

In the Copyright Office’s response filed this week, Perlmutter says that the office acted “reasonably and consistently with the law” when it rejected Thaler’s application. The Copyright Office said that “copyright protection does not extend to non-human authors,” citing the Copyright Act as well as Supreme Court and federal court decisions.

The response also explains that the Copyright Office uses the Compendium of U.S. Copyright Office Practices (Third Edition), which uses copyright law to create a standard for registering works. That guide states that the Copyright Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”

[Read: New AI Apps Raise Questions About Copyright & More]

If a work of art is not eligible for copyright, it could be used by others without compensation. “If you’re letting the computer take over for you, like pulling a lever on a slot machine, then it’s public domain really, anyone could take that output. You don’t have intellectual property rights to it,” explained Aaron Arce Stark, founding attorney of Stark.Law, in an interview with Rangefinder last December.

The case highlights emerging debates as generative AI software surges in popularity. Because of its young age, generative AI is surrounded by several murky legal questions. For example, Getty Images and other artists are suing AI software companies for using their images to train the software without permission.

The Thaler case highlights the debate on ownership when an artificial intelligence program creates random artwork without human input. The U.S. Copyright office has granted copyright to AI-assisted works, as in the case of a graphic novel created in part with AI. Last year, Kris Kashtanova received a copyright for Zarya of the Dawn. While the artwork was created using the software Midjourney, Kashtanova wrote the text and guided the software into creating appropriate images to accompany the story.

Thaler isn’t arguing that he had artistic input in the creation of the autonomous artwork—instead, he argues that the Copyright Act doesn’t limit copyright to man-made creations.

The court case is ongoing and a judge has not yet ruled on the motion for summary judgement.