• Digital artwork created by an AI system has once again been denied U.S. copyright registration. The ruling in Thaler v. Perlmutter granted summary judgment to the Copyright Office and Shira Perlmutter, Register of Copyrights and Director of the Office, and upheld the Copyright Office’s longstanding position that U.S. copyright law only affords protection to works of human creation.

• The decision provides further insight on how the U.S. courts are likely to approach the intersection of AI and intellectual property, particularly in areas such as authorship and ownership.

• Companies investing in and content creators utilizing generative AI tools to produce artwork should be aware that human involvement in the creation process is likely necessary for the generated works to be considered protectable intellectual property.

• The distinction between works created partly by or in conjunction with AI tools and works wholly produced by AI is not always clear-cut. Further guidance is needed to understand how the balance between human involvement and technological input will affect authorship claims.

In 2018, Dr. Thaler sought to register "Recent Entrance" with the U.S. Copyright Office, listing the Creativity Machine as its author. He claimed that ownership had been transferred to him under the work-for-hire doctrine, which allows the employer of the creator of a given work or the commissioner of the work to be considered its legal author. However, in 2019, the Copyright Office denied copyright registration for "Recent Entrance," ruling that the work lacked the requisite human authorship. Dr. Thaler requested a review of his application, but the Copyright Office once more refused registration, restating the requirement that a human have created the work.

On June 2, 2022, Dr. Thaler initiated a lawsuit against the Copyright Office, challenging the Office’s ruling as arbitrary and capricious in violation of the Administrative Procedure Act. In granting summary judgment to defendants, Judge Howell emphasized 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."¹ In support of her decision, Judge Howell drew on nearly a century of copyright jurisprudence, including the Ninth Circuit’s recent finding that a crested macaque could not sue based on alleged infringement of photographs he took of himself, as "all animals, for they are not human" lack statutory standing under the Copyright Act.² As Judge Howell noted, copyright law is intended to incentivize humans to create is the foundational purpose of copyright law. Since "non-human actors need no incentivization with the promise of exclusive rights," "copyright was . . . not designed to reach them."³

Because Judge Howell found that "Recent Entrance" was never even eligible for copyright protection, she did not address Dr. Thaler’s work-for-hire argument. The only question relevant to the ruling was whether a work generated autonomously by AI is protectable under the copyright law – to which the court responded with a definitive no.

Judge Howell acknowledged that the use of AI tools will undoubtedly raise complex questions for copyright law. As she noted, key questions remain as to the quantum of human input necessary to qualify a human user of an AI system as the "author" of a generated work, the scope of the protection obtained over the resulting image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI – and more.

What's Next?

Thaler highlights the need for further guidance on the extent of human involvement required for a work to qualify for copyright protection in the AI context. While it is clear that works created without any human involvement will not receive copyright protection in the U.S., the position is less certain when an artist uses a mixture of human-authored and AI-generated elements. Indeed, earlier this year, the Copyright Office granted a limited copyright registration for an AI-assisted comic book, Zarya of the Dawn. The artist, Kris Kashtanova, was entitled to copyright registration of the comic’s text and the whole work, but not the images generated by Midjourney, a generative AI system, because these images were not considered products of human authorship.

On March 16, 2023, the U.S. Copyright Office published Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence.⁴ The Guidance consists of a statement of policy which aims to clarify the Copyright Office's position on examination and registration of works involving the use of AI-generated materials. Like Judge Howell's ruling, the Guidance focuses on the necessity of human involvement in order for a work to be eligible for copyright protection in the U.S. As per the Guidance, the Copyright Office will evaluate whether AI contributions result from "mechanical reproduction" or from a (human) author’s "own original mental conception" on a case-by-case basis.

While it is clear that this is an area of the law that is still evolving, the Thaler ruling has important implications for the creative industries. Companies and content creators using AI tools to produce artwork will need to ensure that there is sufficient human involvement in the creative process to claim copyright protection. This could make it more difficult to commercially exploit AI-generated artworks, and is likely to raise challenges for copyright enforcement. As the use of AI technology increases and develops, further judicial insight and input from the Office will be welcome and anticipated.

1. Thaler v. Perlmutter, _ F. Supp. 3d _, 2023 WL 5333236, at *10 (D.D.C. Aug. 18, 2023).
2. Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018).
3. Thaler, 2023 WL 5333236, at *4.
4. See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023).