Who owns the copyright on AI generated images? Nobody, says the US Federal Court

Human authorship is a bedrock requirement of copyright, says US District Court for the District of Columbia

This image was generated by a computer system called the "Creativity Machine" . Dr. Stephen Thaler sought to register a copyright and listed the author as the Creativity Machine and claimed ownership of the copyright as the owner of the machine. The Copyright Office denied the application, finding the work lacked the necessary human authorship for copyright protection. Thaler challenged that denial, arguing an AI system should be recognized as an author.

The Register of Copyrights maintained that human authorship is essential under copyright law. The parties filed cross-motions for summary judgment, presenting the sole legal issue of whether a work autonomously generated by AI is copyrightable absent any human involvement in its creation. The court ruled in favor of the Copyright Office, finding that the copyright law's requirement of an "author" refers only to human creators, as evidenced by the text of the Copyright Act, its legislative history, Supreme Court precedent, and uniform judicial interpretation. Therefore, because this work lacked any human authorship, the Register properly concluded no copyright existed to be registered.

Ryan Abbott , a Professor of Law and Health Sciences at University of Surrey, posted the opinion of the US District Court granting summary judgment to the Register of Copyrights and noted that there is a plan to appeal the judgment of the District Court.

Interpreting the Copyright Act

Here's how the Court applied the Copyright Act to this case:

• The Act protects "original works of authorship" that are "fixed in a tangible medium of expression" (17 U.S.C. §102(a)).
• The "author" and "fixing" requirements indicate human involvement is required for copyright protection.
• "Author" refers to a human creator, based on dictionary definitions, legislative history showing no intent to change the human authorship requirement from the prior 1909 Act, and Supreme Court precedent centered on human creativity.
• Courts have consistently held works lacking human authorship, like those purportedly created by divine beings, animals, or nature, are not copyrightable.
• The work-for-hire provisions also imply a human author by referring to "employees" and requiring a signed written agreement (17 U.S.C. §101).
• Copyright exists upon creation of a qualifying work, so if the Register properly concluded this work lacked human authorship, then no copyright ever existed to be registered.

Malleability of copyright law

Plaintiff argued copyright has proven adaptable to new technologies, citing cases like Burrow-Giles upholding photos and Goldstein interpreting "writings" broadly.

The Court agreed copyright has adapted but said human creativity remained the sine qua non for protection, e.g. Burrow-Giles still required the photographer's creative choices in posing and arranging the photo.

Plaintiff cited the lack of definition for "author" in the Act, arguing it is flexible.

The Court acknowledged this but said the plain meaning and legislative history show "author" refers to human creators. Plaintiff pointed to the Act's "now known or later developed" language as showing adaptability. The Court agreed but said this still presupposed human authorship, with no sign Congress intended to remove that longstanding prerequisite.

So while acknowledging the malleability of copyright law, the Court emphasized that human creativity has consistently remained its essence and foundation, even through technological shifts. The lack of definition for "author" did not persuade the Court that this fundamental principle had been abrogated.

Approaching new frontiers in copyright

The Court acknowledged that humanity is approaching "new frontiers" in copyright as artists increasingly use AI tools to generate works, which will raise challenging questions. However, the Court emphasized that this particular case did not get close to that frontier. Increased use of AI will prompt questions about how much human input is needed to qualify as an "author", the originality of AI-generated works, how to incentivize AI-assisted creativity, etc. But here, based on the plaintiff's own representations, there was zero human input or creativity involved in generating the work.

So this "new frontier" case simply presented the basic question of whether a work created solely by an AI system, without any human involvement, is copyrightable.

Tip of the Iceberg

With the pace at which technology is advancing and the capabilities of generative AI systems are improving, it will be a herculean challenge for the legislature as well as the judiciary to keep up with the pace. Limiting the discussion to copyright issues, a few other issues that we may see in the future could be:

• Disputes between users/ trainers of AI systems versus companies that create the underlying software.
• Assessing the originality and creativity of AI output, which may be trained on vast datasets and produce works with little human direction.
• Infringement issues if AI systems are trained on copyrighted works without authorization. (already a reality with Getty Images suing Stable Diffusion)
• Liability issues if AI-generated content causes harm - who is accountable?
• AI nearing or surpassing general human capacity in some creative areas.

What about Patents?

Earlier this year, the US Supreme Court declined to hear Thaler's appeal against the U.S. Patent and Trademark Office's decision not to grant patents for inventions made by his AI system. The USPTO had previously ruled that only human inventors can receive patents and did not recognize Thaler's AI system as the legal creator of the two inventions in question.

As Thaler continues to push the boundaries of now only technology but also the laws which currently fail to take into account the new reality of Artificial Intelligence, it remains to be seen how soon the gap between technology and law closes, if at all.

Here's a link to the opinion of the US District Court granting summary judgment to the Copyright Office in this case.