Can AI Copyright Its Art?

By Mirae Heo

One of the things artists can do to protect their works is to federally register them with the US Copyright Office. Works that can be registered include literary works, musical works, graphical works, and even architectural works.[1] Congress purposely left the language of section 102(a) of the Copyright Act of 1976 to be very broad so that the statute did not bar future works from copyright protection because of updates in technology.[2] Does that mean that works created by artificial intelligence (AI) are copyrightable? The Copyright Office says no, but Dr. Stephen Thaler certainly tried to.

On November 3, 2018, Dr. Thaler filed a copyright application to register a two-dimensional work of art titled, A Recent Entrance to Paradise.[3] This artwork was created by an algorithm Dr. Thaler invented called the Creativity Machine which can create images of what the AI experiences while going through a “simulated near-death experience.”[4] Dr. Thaler wrote on his application that he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”[5] On August 12, 2019, the US Copyright Office rejected the application on the grounds that the artwork “lack[ed] the human authorship necessary to support a copyright claim.”[6] The type of work was not what was at issue, but rather the “author” of the work.

Dr. Thaler requested that the Office reconsider its rejection of his application. He argued that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.”[7] On March 30, 2020, the Office once again rejected to extend copyright protection to A Recent Entrance to Paradise because Dr. Thaler did not provide evidence with his request that the image was created with “creative input or intervention by a human author.”[8] The Office refused to “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.”[9]

In his second request for reconsideration, Dr. Thaler once again argued that the human authorship requirement is unconstitutional and unsupported by case law.[10] He claims that, from a public policy view, extending copyright protection to computer-generated works “further[s] the underlying goals of copyright law, including the constitutional rationale for copyright protection.”[11] He also argued that there was no binding authority that explicitly prohibited computer-generated works from receiving copyright protection.[12]

On February 14, 2022, the Office denied the registration again. The Office concluded that Dr. Thaler had to have “convince[d] the Office to depart from a century of copyright jurisprudence,” but he failed to do so.[13]

Copyright protection is given to “original works of authorship fixed in any tangible medium of expression,” but neither “author” nor “authorship” is defined in the Copyright Act of 1976.[14] Despite the lack of guidance in the Copyright Act, case law limits the scope of “author” and “authorship.  In Supreme Court cases, such as Burrow-Giles Lithographic Co. v. Sarony and Goldstein v. California, the Court referred to “authors” as humans.[15]

Lower court decisions have also refused to extend copyright protection to non-human creations. In Urantia Found. v. Maaherra, the Ninth Circuit held that a book “’authored’ by non-human spiritual beings” was not copyrightable.[16] In Naruto v. Slater, the Ninth Circuit held that animals did not have legal standing under the Copyright Act.[17]

The Compendium of U.S. Copyright Office Practices, the administrative manual of the Register of Copyrights, goes into even more detail about works that lack human authorship. According to the Compendium, “[t]he U.S. Copyright Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings . . . .”[18] It even lists very specific examples of uncopyrightable works such as “a mural painted by an elephant,” “a claim based on cut marks, defects, and other qualities found in natural stone,” and “an application for a song naming the Holy Spirit as the author of the work.”[19] In regards to machine-created works, the Compendium states that “the 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.”[20]

But can AI really compare to animals and divine spirits? AI is a system “that mimic[s] human intelligence to perform tasks.”[21] The Copyright Office seems convinced that, for now, a work solely created by AI lacks the required human input necessary to constitute a copyrightable work. Perhaps advancements in AI will reach a point in the future where the Copyright Office will recognize the human intelligence in AI as human authorship.

[1] 17 U.S.C. § 102(a).

[2] H.R. Rep. No. 94-1476, at 51 (1976).

[3] Letter from Shira Perlmutter, Register of Copyrights, U.S. Copyright Off. Rev. Bd., to Ryan Abbott, Dr. Thaler’s Attorney (Feb. 14, 2022) (on file with the U.S. Copyright Off.) [hereinafter Letter].

[4] Mark Nicholson, Artificial Intelligence – Visions (Art) of a Dying Synthetic Brain, Urbasm (May 18, 2016), https://www.urbasm.com/2016/05/artificial-intelligence-visions-art-of-a-dying-brain.

[5] Letter, supra note 3, at 2.

[6] Id.

[7] Id.

[8] Id.

[9] Letter, supra note 3, at 2.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 3.

[14] 17 U.S.C. § 102(a).

[15] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884); Goldsten v. California, 412 U.S. 546, 561 (1973).

[16] Urantia Found v. Maaherra, 114 F.3d 955, 957 (9th Cir. 1997).

[17] Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018).

[18] U.S. Copyright Off., Compendium of U.S. Copyright Off. Practices § 313.2 (3d ed. 2021).

[19] Id.

[20] Id.

[21] IBM Cloud Education, Artificial Intelligence (AI), IBM (June 3, 2020), https://www.ibm.com/cloud/learn/what-is-artificial-intelligence.

Image Source: https://artist.com/art-recognition-and-education/art-and-the-singularity-how-will-artificial-intelligence-creative-robots-change-art/