Thaler v. Perlmutter: AI Artwork Not Yet Eligible for Copyright Protection

Can the authorship requirement for copyright protection be extended to include AI-generated works? The US District Court for the DC Circuit says no.

With new developments in artificial intelligence entering the world of intellectual property, several legal issues have started to appear. One question is whether copyright ownership should be granted to artworks created autonomously by AI. The US District Court for the DC Circuit addressed this question in Thaler v. Perlmutter and found that copyright law only protects works created by human authors. This case was an appeal from Thaler following the initial refusal by the U.S. Copyright Office (USCO) to register a copyright for “A Recent Entrance to Paradise,” which was a piece of artwork created by a “Creativity Machine,” an AI algorithm. The USCO denied Thaler’s application because the artwork lacked any human authorship needed to support a copyright claim because copyright law only covers works created by human beings. 

The USCO has identified factors it will use to determine if a copyright application involving works with AI involvement fits the human requirement. It includes how the user defined the prompt to AI and how the user responded to what the AI-generated. The US District Court for the DC Circuit agreed with the USCO and ruled against Thaler by finding that courts have uniformly declined to recognize copyright in works created absent any human involvement. The case revolved around the question of authorship. Thaler initially claimed that the AI algorithm was the author of the work but that he should be granted ownership of copyright for the work it created because he owned the machine. Specifically, Thaler’s argument began by claiming that ownership was authorship, but when this argument failed, he claimed that he was the author because he created the machine, and without the machine, there would be no artwork.

The USCO defined authorship as a human effort under copyright law, and the Justice Department attorney representing USCO, Nicholas Crown, added that the court merely had to vote on whether you must have some human involvement in creating the work. Despite Thaler later attempting to introduce evidence of human involvement in the creation of the work, the District Court ruled against him. 

Regarding AI art generators, the law views AI itself as the author because the only creator is the AI, which develops the image. An AI author cannot hold a copyright, so AI art is not eligible to receive a copyright registration as it fundamentally fails the human input requirement. The court also acknowledged the concerns and challenges that AI and technology pose to determine how much human input is necessary to qualify a programmer or other user of AI as an author of its work. It also questioned how intellectual property and copyright laws may be wielded to best incentivize creativity in works involving AI input.

However, it distinguishes these burgeoning issues from the case at hand by describing how Thaler never attempted to correct the claim that the AI was the author in his original application to reflect his contributions. So, the court based its decision on the question of whether a work generated autonomously by AI is eligible for copyright protection. The court’s mentions of how copyright law may be extended to provide protection over works involving AI leave room for interpretation in possible subsequent cases.

The advancement of AI and other related technologies will likely force the court to readdress these questions until the law can be modified to account for their existence. For now, however, copyright eligibility may be found for works involving AI if some human involvement is found, but it will not be extended over works generated autonomously by AI.