The growing prevalence of artificial intelligence (AI) tools is reshaping our perspectives about many aspects of our world, and the art world is no exception. AI art (AI-generated art), which involves the use of AI algorithms and computer programs to create or significantly manipulate artwork, is challenging conventional notions about creativity, authorship, and copyrights. 

When an AI program creates art, there is ambiguity regarding who should rightfully hold the copyright for that artwork. Some argue that the copyright should be granted to the person who operated and controlled the program to create the artwork, while others contend that the copyright should be granted to the owner of the AI system. Some even argue that copyright should be granted to the AI program itself. 

One proponent of this last view is Stephen Thaler, who applied to copyright an artwork generated by his own computer algorithm called the Creativity Machine. Thaler submitted a copyright application listing the Creativity Machine as the sole author of the artwork. Recently, a U.S. District Court supported the U.S. Copyright Office’s rejection of Stephen Thaler’s copyright application for the AI-generated artwork, stating that human authorship is a bedrock requirement for copyrights. However, AI-generated art should still be copyrightable in light of the emphasis on human authorship. 

Patent Attorney help with Copyright Registration

What is a copyright? A copyright is the exclusive legal right given to an originator (or an assignee) to reproduce, distribute, perform, display, and prepare derivative works based on the work. In addition, this protection gives the owner the right to let others exercise these exclusive rights (license), subject to certain statutory limitations. Read more about copyrights on our “What is a Copyright?” page.

For a work to be copyrightable, it must be original and fixed. 

  1. Copyright protection is provided to authors of original works of authorship, or works that are independently created by an author and possess at least some minimal degree of human creativity. 
  2. The work must be fixed in any tangible medium of expression, such as an auditory recording, to be eligible for copyright protection.

Additionally, courts have recognized human influence as a third requirement for copyright eligibility. This means only works that are created by a human being and reflect at least some human creativity are recognized by the U.S. Copyright Office. For example, a living garden cannot be copyrighted because, according to U.S. Courts, a living garden is not authored by a human creator. This criterion plays a key role in the debate on whether AI art is copyrightable.

Other Considerations for Copyrighting

Under the existing copyright laws in the United States, works that can be copyrighted include literary works, musical works, and visual works (pictorial, graphic, and sculptural works). We will consider AI-generated art that falls under these categories in our discussion.

In some cases, companies, organizations, and other people besides the work’s creator can also be copyright owners. The “works made for hire” doctrine establishes that works made by an employee under the scope of employment can be owned by the employer.

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Did the Court Rule that AI Art is Not Copyrightable?

AI Art Lawsuit: Thaler v. Perlmutter et al

Stephen Thaler, the creator of a computer algorithm called the Creativity Machine, applied to copyright an artwork generated by this algorithm. Thaler submitted a copyright application listing the Creativity Machine as the sole author of the artwork to the U.S. Copyright Office, who rejected his application several times. Thaler issued a lawsuit against the Copyright Office. District Court Judge Beryl A. Howell recently ruled in favor of the Copyright Office, stating that human authorship is a bedrock requirement for copyrights.

Many headlines have stated or implied that the court decision means that AI-generated art is not copyrightable. Several headlines covering this news even claim that Judge Howell ruled that AI-generated art cannot be copyrighted. This is a misleading interpretation of what this ruling actually means for whether AI-generated art in general is eligible for copyright protection.

What this Ruling Means for AI Art and Copyrights

The court ruling rather means that Thaler’s specific copyright application fails to demonstrate that the existing requirements for copyrights, namely the requirement of human authorship, are met, and that his application therefore cannot be granted. Judge Howell emphasized that “copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand.” Thaler failed to convince the District Court because he claimed that there was minimal human intervention and that the AI machine itself should be granted copyrights to the artwork. In other words, Thaler denied a guiding human hand and challenged the requirement for human intervention, while Judge Howell upheld the requirement of human authorship.

However, the District Court did not decide in Thaler v. Perlmutter et al that AI-generated art is not copyrightable. The court ruling does not exclude the possibility that AI-generated art can be created with enough human intervention to qualify for copyright. Judge Howell acknowledged this in her ruling, stating that humanity is “approaching new frontiers in copyright,” where artists will “put AI in their toolbox to be used in the generation of new visual and other artistic works.” She recognized that this will create “challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work,” especially considering that AI systems may have trained on unknown pre-existing works.

Why AI-Generated Art Should Be Copyrightable

The expression that artists will put AI in their toolbox points to the reason why AI-generated art should be copyrightable. 

AI-generated art should be copyrightable because it is indeed possible to create AI-generated art with enough human intervention and creativity to satisfy the requirements for copyright. Further, we argue that there is often enough human intervention in AI-generated art to satisfy the “guiding human hand” requirement. 

This is because AI is a tool, as much as any other art tool, for human creation and fixation of ideas into a tangible medium of expression. In other words, AI-generated art is created by a human author using AI as a tool for artistic expression. It is akin to using paint, paintbrushes, pencils, pastels, or even the combination of an iPad, stylus, and Procreate app to create artwork. 

AI-generated art possesses human creativity to the degree that the human author directs the AI tool to create images with a certain color scheme, theme, ambience, etc. That means there is, more often than not, a “guiding human hand” that directs the creation of AI-generated art.

Even in the case of the Creativity Machine, Thaler directed the machine create hallucinatory images and a fictional narrative about the afterlife. This could mean that the works created by the Creativity Machine reflect more human direction and creativity than claimed in the copyright application for works created by the machine. If Thaler did not list the Creativity Machine as the sole author of the AI-generated art and appealed to his influence on the machine in creating the art, the Copyright Office’s decision could have turned out differently.

Assuming that an AI-generated artwork meets the other criteria for copyright eligibility (originality and fixation), the artwork should be considered copyrightable. In other words, based on current copyright laws, AI-generated artwork is as copyrightable as any other work of art that meets the criteria for copyrights, and legal protection should be granted to the human manipulating the AI machine to create the art.

How About AI Art Generated Using Other Artists’ Work Without Permission?

While it is possible to create original works using AI tools, some AI-generated art results from training AI systems on the works of human artists, leading to artwork that essentially manipulates existing pieces. Unless there is a substantial difference between the resulting AI-generated artwork and the preexisting art, such instances of AI-generated artworks are not (and should not be) copyrightable. 

This is not because they are AI-generated, but because they lack originality. That is, they fail to meet the originality requirement of copyright. Note that this is not a problem unique to AI-generated art. An example is that certain pieces of collage art or digital art could face a similar challenge in discerning originality. 

Can AI Generated Art Be Patentable?

Patent Attorney Help with Design Patent Applications

We have shown how AI-generated art can and should be considered copyrightable. But can AI-generated art be patentable?

Artwork that features an ornamental design for an object having practical utility can be eligible for a design patent (e.g., the Coca Cola bottle). Read more about the benefits of design patents and our design patent application services

If an AI-generated artwork meets the necessary requirements for a design patent (uniqueness, does not affect function of invention, and inseparable from invention), then it may qualify for a design patent. Read more about the 5 steps to patent

The ruling against Thaler’s copyright application does not mean that AI-generated art cannot be copyrighted, but it does reveal the importance of appealing to human authorship when seeking copyrights for AI-generated artwork. AI-generated art theoretically can and should qualify for copyright as it is the product of human creativity and (AI) tool use.

As Judge Howell stated in her ruling on Thaler v. Perlmutter et al, we are approaching new frontiers in copyright law as people develop and adopt more AI tools in their creative endeavors. Artists, especially those who utilize AI tools, must stay aware of the ever-evolving legal implications of the intersection between art and technology. Registering your work for a copyright using our 3 steps to copyright is a relatively simple process that you can do yourself, but Carson Patents can help. Contact us to schedule a free copyright consult and learn more about our copyright registration services.

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