US judge: Art created solely by artificial intelligence cannot be copyrighted

AI-generated image looks like a painting of a train track running through a tunnel overgrown with flowers.
Enlarge / AI-generated art titled, “A Recent Entrance to Paradise.” The image cannot be copyrighted, a judge ruled.

Art generated entirely by artificial intelligence cannot be copyrighted because “human authorship is an essential part of a valid copyright claim,” a federal judge ruled on Friday.

The US Copyright Office previously rejected plaintiff Stephen Thaler’s application for a copyright because the work lacked human authorship, and he challenged the decision in US District Court for the District of Columbia. Thaler and the Copyright Office both moved for summary judgment in motions that “present the sole issue of whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright,” Judge Beryl Howell’s memorandum opinion issued Friday noted.

Howell denied Thaler’s motion for summary judgment, granted the Copyright Office’s motion, and ordered that the case be closed.

Thaler sought a copyright for an image titled, “A Recent Entrance to Paradise,” which was produced by a computer program that he developed, the ruling said. In his application for a copyright, he identified the author as the Creativity Machine, the name of his software.

Image “created by a computer algorithm”

Thaler’s application “explained the work had been ‘autonomously created by a computer algorithm running on a machine,’ but that plaintiff sought to claim the copyright of the ‘computer-generated work’ himself ‘as a work-for-hire to the owner of the Creativity Machine,'” Howell wrote. “The Copyright Office denied the application on the basis that the work ‘lack[ed] the human authorship necessary to support a copyright claim,’ noting that copyright law only extends to works created by human beings.”

The denial was in August 2019. Howell petitioned the Copyright Office again, saying that AI should be “acknowledge[d]… as an author where it otherwise meets authorship criteria, with any copyright ownership vesting in the AI’s owner.” The Copyright Office again refused to register the work in 2020 and 2022.

“Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work,” the second refusal letter in March 2020 said.

Thaler last year lost a different case over whether AI software can be the registered inventor on a patent. US patent law requires inventors to be human, a federal appeals court ruled in the August 2022 ruling against Thaler.

Plaintiff “put cart before the horse”

In the Friday ruling on copyright of an AI-generated image, Judge Howell wrote that Thaler attempted “to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer’s work would transfer to him, as the computer’s owner; for example, by operation of common law property principles or the work-for-hire doctrine.” But these arguments “put the cart before the horse” because they only address “to whom a valid copyright should have been registered,” not whether a copyright can be granted for a work generated without human involvement, Howell wrote.

“United States copyright law protects only works of human creation,” Howell wrote.

Thaler “correctly observes” that “copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper,” the ruling said. The US Copyright Act of 1976 says that copyright attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed… either directly or with the aid of a machine or device.”

“Underlying that adaptability, however, has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media,” Howell wrote.

Thaler pointed out that the Copyright Act does not define the word “author.” But Howell wrote that the law’s “‘authorship’ requirement as presumptively being human rests on centuries of settled understanding.”