In recent years, artificial intelligence has improved its ability to create “art” – algorithms are now capable of making convincing “images” of people and locations that do not exist. The US Copyright Office has determined that some AI artworks cannot be copyrighted in the United States.

Last Monday, the Copyright Office issued a fresh ruling rejecting a request to copyright an AI-generated artwork.  “Visions of a Dying Brain” created by AI.

A three-person board was entrusted with reviewing a 2019 verdict against a man called Steven Thaler, who had applied for the copyright of an art piece titled A Recent Entrance to Paradise, created by an AI system he called Creativity Machine.

The piece was part of a series in which the AI reprocessed images to produce scenes from a “simulated near-death experience.” In 1997, Thaler was granted a patent for a method of creating fictitious “visions of a dying brain.”

The algorithm “generated fictional experience from various reversible noise and irreversible damage effects within neural-network-based brain simulations,” writes Urbasm. “Rather than show a neural net pictures (as a big search engine company has) and allow it to replace items in the scene with weird objects deliberately planted by software engineers (i.e., dog heads and pagodas), these systems are exposed to their surroundings, ‘blindfolded,’ and allowed to choose from the myriad self-generated fantasies it finds most interesting.”, says the author.

On November 3rd, 2018, Thaler filed a copyright application for A Recent Entrance to Paradise, designating himself as the claimant and the work’s author as “Creativity Machine,” saying that the copyright should be transferred from the AI to him due to his “ownership of the machine.”

Thaler was trying to register this computer-generated piece as a work-for-hire to the proprietor of the Creativity Machine, “according to the application, which noted that the work “was autonomously created by a computer algorithm operating on a machine.”

An Exchange of Letters with the Copyright Office

The US Copyright Office denied his registration on August 12th, 2019, noting that it “lacks the human authorship required to substantiate a copyright claim.”

Thaler filed an appeal the following month, requesting that the Copyright Office review the application’s denial, claiming that “the human authorship criterion is unlawful and unsupported by either statute or case law.”

Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work,” according to the Office, which would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.”

On May 27, 2020, Thaler filed a second appeal, arguing that AI artworks should be copyrightable because it would “advance the fundamental aims of copyright law, including the constitutional foundation for copyright protection.” The Office was “currently relying on non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected,” according to the second appeal, which claimed that “there is no binding authority that prohibits copyright for [computer-generated works]” and that the Office was “currently relying on non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.”

In the United States, only human creators have copyright.

Because Thaler confessed that no human author was engaged in the work, the Copyright Office focused on Thaler’s contention that the criterion for human authorship is unconstitutional and backed by earlier judgements when examining his second appeal.

“The Court has continued to articulate the nexus between the human mind and creative expression as a prerequisite for copyright protection,”  the Office adds. “The Office is bound by Supreme Court precedent, which establishes that human authorship is a necessary component of copyright protection.

[…] While the Board is not aware of a United States court that has considered whether artificial intelligence can be the author for copyright purposes, the courts have been consistent in finding that non-human expression is ineligible for copyright protection.

[…] After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice, the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.”

The complete 7-page ruling, which was released on February 14th, 2022, is as follows:

A Recent Entrance to Paradise by Michael Zhang

The “monkey selfie” case

A decade earlier, a monkey snatched photographer David Slater’s camera and snapped a series of viral self-portraits, sparking a similar copyright debate. In 2015, the animal rights organization PETA sued the photographer on behalf of the monkey, requesting that copyright be transferred to the animal.

Slater agreed to contribute 25% of future revenues from the images to charity in a 2017 settlement with PETA, but a court ruled against PETA in 2018, setting the precedent that only humans, not animals, may register for copyright and launch copyright claims.

Because it was not made by a human, this viral monkey selfie from 2011 is in the public domain.

So, whats the Future of Copyright for Artificial Intelligence-Created Works?

The Verge, which first reported on the recent Copyright Office ruling, points out that humans may still be able to earn copyright for AI-created works if they take a different method that causes the Copyright Office to perceive them as an important part of the process.

The Verge reports that “Thaler emphasized that humans weren’t meaningfully involved because his goal was to prove that machine-created works could receive protection, not simply to stop people from infringing on the picture” .  “The board’s reasoning takes his explanation for granted. So if someone tried to copyright a similar work by arguing it was a product of their own creativity executed by a machine, the outcome might look different.”.

Thaler might potentially take his case to the courts instead of the Copyright Office, filing a lawsuit to see whether a judge would reach a different result than the copyright board.

The combination of AI and copyright will definitely continue to crop up in court conflicts and headlines in the future years as artificial intelligence technologies play a larger and larger role in photography and other creative professions.