On Friday, August 21, 2023, Stephen Thaler lost his appeal of the Copyright Office’s refusal to register a piece of art generated by his “Creativity Intelligence” AI computer system. U.S. District Judge Beryl A. Howell agreed with the Copyright Office that “human authorship is an essential part of a valid copyright claim.” A work generated autonomously by a computer does not fall under the protection of copyright law upon its creation.

The Copyright Office had rejected both of Thaler’s arguments: (1) Thaler was the work-for-hire owner of the Creativity Machine, and (2) the human authorship requirement should be contested if the AI-generated work meets authorship criteria. While the Court considered Thaler’s arguments that the Copyright Office had adapted with the times (accepting photographs), human authorship was always a requirement.

The Court noted the increasing use of AI in the development of the final creative work raised “challenging questions” regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, and what is the scope of protection to be given such work.

Further, are any AI-generated works trained on unknown pre-existing, perhaps copyrighted works, sufficiently original? And ultimately, how can copyright law best be used to incentivize using AI? The Copyright Office, and the courts, will likely have to answer these questions in the future.

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