Copyright in AI-Generated Artwork

The copyright status of AI-generated art is in turmoil to say the least. The U.S. Copyright Office has repeatedly refused to register a two-dimensional work by computer scientist Stephen Thaler called “A Recent Entrance to Paradise,” most recently in February 2022 when its Review Board denied a second request for reconsideration by Thaler. In his initial application for copyright registration in 2018, Thaler identified the author as the “Creativity Machine” and stated that it “was autonomously created by a computer algorithm running on a machine.” The Board reaffirmed the Office’s earlier decisions denying registration on the grounds that human authorship is a prerequisite to copyright registration in the U.S. The February decision cited Supreme Court and lower court precedents for denying copyright protection to non-human creations. For example, in Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957-959 (9th Cir 1997), the Court held that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.” In another Ninth Circuit decision, Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018), a work created by a monkey was denied protection for similar reasons. (But the monkey was found to have Article III standing to sue even if it did not have statutory standing under the Copyright Act — see our past and forthcoming discussions of legal personhood.)

Thaler subsequently sued the Register of Copyrights and the U.S. Copyright Office. The case is pending in the U.S. District Court for the District of Columbia.

Recently, Kris Kashtanova, a New York-based artist, did receive a copyright registration for a graphic novel with AI-generated artwork. This action may stand for the proposition that the Copyright Office will register works with AI-generated elements but which identify a human author, an issue sidestepped by the Board decision in the Thaler case. Or, it has been suggested that the AI-generated aspects may have been overlooked in the review process. The Copyright Office won’t comment.

Meanwhile Getty Images has announced that it will no longer carry AI-generated images, stating that the ban was “prompted by concerns about the legality of AI-generated content and a desire to protect the site’s customers.” The legal concerns are accompanied by a growing outcry from artists and photographers who believe that AI-generated art is impairing their potential for monetizing their works. It was reported that Shutterstock removed all of Kashtanova’s AI-generated works from its site, stating that machine-generated content did not meet its Terms of Service, but subsequently restored the content. According to Paul Hennessey, the CEO of Shutterstock:

There are many open questions on the copyright, licensing, rights, and ownership of synthetic content and AI-generated art… We need to do all that we can to not only protect the intellectual property rights of our contributors alongside the advent of this technology, but also ensure that they’re empowered to take advantage of this new creative medium.

Interestingly, the ability to pursue a DMCA claim in cases where an AI-generated image is used without permission on a social media site, as distinguished from a copyright infringement claim, may have a better chance of success since copyright registration is not a prerequisite to takedown notices.

Whether AI-created systems are patentable is also unclear. Thaler has been trying to patent his AI-system system DABUS. To date he has been unsuccessful. In August the U.S. Court of Appeals for the Federal Circuit ruled that the term “individual” in the Patent Act means a “natural person.” 43 F.4th 1207 (Fed. Cir. 2022).

Other countries have taken more liberal views of the copyright status of AI-generated images. Thaler has obtained a patent on one of his products in Australia, for example. We will continue to follow developments in this turbulent and fascinating area.