Can works created by AI be protected by copyright? Las Vegas

Timothy A Wiseman

Aug 29, 2023 2 min read

Can works created by AI be protected by copyright?

Updated: May 15

While it remains a developing area of law, a federal court has recently determined that a work made purely by an AI cannot be protected by current copyright law. Thaler v. Perlmutter, Civil Action No. 22-1564 (BAH), 2023 U.S. Dist. LEXIS 145823, at *2 (D.D.C. Aug. 18, 2023).

Mr. Stephen Thaler owned a computer system and the related software that he called the “Creativity Machine.” The Creativity Machine created a piece titled “A Recent Entrance to Paradise.” He then sought to have the copyright on this piece registered with the U.S. Copyright Office. The Copyright Office, based on the information he submitted, declined to register the work stating that human authorship was a requirement for copyright protection.

Mr. Thaler then sought judicial review of this decision. The D.C. District Court agreed with the Copyright Office finding that a work created purely by AI cannot be protected by copyright laws because for copyright protection to exist, there must be a human author. In fact, the Court reasoned that at least under current law, “Human authorship is a bedrock requirement of copyright.” Id. at *11. The work in question is therefore necessarily part of the public domain and lacks copyright protection.

While, at least as far as I can find, this is the first case to squarely address the question of whether human authorship is an absolute requirement for copyright protection, it is consistent with and considered prior precedent where copyright protections for works where human authorship was absent or questionable. Most significantly, a prior court declined to allow a macaque monkey, dubbed Naruto, to sue for copyright infringement over a selfie. Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018). The Naruto issue was decided on standing rather than directly addressing the question of whether the image could have copyright, but it nonetheless is at least consistent with and supports the Court’s decision in Thaler.

In this case, largely for procedural reasons, the Court only addressed the question of whether a work which was entirely generated by AI could be protected by copyright. It left open the question of how much human intervention would be required before the end product could be registered for copyright protection.