Art Created By Artificial Intelligence Can’t Be Copyrighted, US Agency Rules

Christian Hetrick

Christian Hetrick is dot.LA's Entertainment Tech Reporter. He was formerly a business reporter for the Philadelphia Inquirer and reported on New Jersey politics for the Observer and the Press of Atlantic City.

An artwork named “A Recent Entrance to Paradise” ​designed by an AI program.
Provided by Ryan Abbott

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Computers can now write poems, paint portraits and produce music better than many humans. But when it comes to the realm of intellectual property law, artwork made by machines can’t receive copyright protection, a federal agency has decided.

The U.S. Copyright Office refused to grant a copyright this month for an image made by an artificial intelligence program called Creativity Machine—ruling that “human authorship is a prerequisite to copyright protection.” The case will now head to federal court as the AI program’s owner, Stephen Thaler, plans to file an appeal, according to Ryan Abbott, a Los Angeles-based attorney representing Thaler.

Thaler, the founder of the Missouri-based AI firm Imagination Engines, tried to copyright “A Recent Entrance to Paradise,” a picture that was autonomously created by Creativity Machine’s algorithm without any human help. Thaler listed the program as the artwork’s author and sought a copyright as the machine’s owner.

The case arrives as artists are increasingly using AI to help generate artwork, including works produced by autonomous machines. Abbott, a partner at L.A.-based law firm Brown, Neri, Smith & Khan, noted that AI-produced artwork is creating significant commercial value, such as an AI-authored painting that sold for $432,000 at auction in 2018.

“The United States Copyright Office has a policy of not allowing that sort of work to be protected,” Abbott told dot.LA. “That sort of policy is going to stand in the way of people developing machines that are going to make socially-valuable creative works: songs, movies, music. This is really an area where the United States should be a global leader in promoting AI development.”

\u200bRyan Abbott, a Los Angeles-based attorney representing Stephen Thaler.

Ryan Abbott, the attorney representing Stephen Thaler.

Provided by Ryan Abbott

Working on behalf of Thaler, Abbott has led a series of legal test cases for AI-generated intellectual property, including patents for inventions created by AI programs. As far as the Creativity Machine artwork, the Copyright Office had twice previously rejected Thaler’s claims in 2019 and 2020, finding that the work “lacked the required human authorship” necessary to win a copyright. In the most recent request for reconsideration, Abbott argued that the human authorship requirement was unconstitutional and unsupported by case law.

But in ruling against Thaler again, the Copyright Review Board’s three-person panel cited several cases in which courts refused to extend copyright protection to non-human creations. In 1997, a federal appeals court ruled that a book allegedly “authored by non-human spiritual beings” could only gain copyright if a human curated the revelations. Similarly, in a separate 2018 case, a monkey was not awarded a copyright for photos that it took with a camera.

“Thaler must either provide evidence that the work is the product of human authorship or convince the Office to depart from a century of copyright [legal theory],” the Copyright Board wrote in its Feb. 14 ruling. “He has done neither.”

Abbott contends that Thaler’s case is different from the monkey ruling cited by the Copyright Board, given that “no one is trying to have a machine own a copyright.” Rather, Thaler wants to own the copyright for artwork created solely by a machine that he built, Abbott said.

“It's going to be a real issue when someone has AI that makes a song that is genuinely commercially valuable—that's playing on the radio, that people want to listen to,” Abbott noted. “Then there's a question: Do I just put my name on this so I can get streaming royalties? Or do I admit the machine made it, in which case I can't stop anyone from using it however they want?”

Abbott said he plans to appeal the board’s decision in federal court in Washington D.C.

Despite its seemingly inhospitable stance toward AI-created artwork, the Copyright Office’s ruling shouldn’t be a major issue for artists using AI as a collaboration tool, according to Ahmed Elgammal, founder of AI software firm Playform. The startup (which is led by L.A.-based CEO Jennifer Chang) creates AI-enabled tools for artists; one of Playform’s products lets artists upload dozens of their own images and uses AI to generate them into something new. (Art created through Playform’s technology was featured in an episode of the HBO series “Silicon Valley.”)

Elgammal said he wasn’t surprised by the Copyright Office’s decision in the Creativity Machine case, as U.S. copyright laws are designed to account for the human creative process. (Other countries like China, he noted, have granted copyrights to autonomous AI.) Still, Elgammal doesn’t see the debate becoming a major issue for artists using AI to assist in their work.

“Artists are using AI as a tool [in] the same way [that] artists are using the camera,” he said. “You cannot claim the camera is the artist. Artists are using cameras to create photographs, and that’s how photographs get copyrighted.”

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