The US Copyright Office has rejected a request to grant an AI copyright to a work of art. Last week, a three-member board of directors reviewed a 2019 ruling against Steven Thaler, who attempted to copyright a photo on behalf of an algorithm he called Creativity Machine. The board found that the AI-created image of Thaler contained no element of “human authorship” — a necessary standard, it said, for protection.
Creativity Machine’s work, seen above, is called “A Recent Entrance to Paradise”. It’s part of a series that Thaler has described as a “simulated near-death experience” in which an algorithm reprocess photos to create hallucinatory images and a fictional story about the afterlife. Crucially, the AI has to do this with extremely minimal human intervention, which has proven to be a deal breaker for the Copyright Office.
The board’s decision calls “the nexus between the human mind and creative expression” an essential part of copyright. As it notes, copyright law doesn’t outline any direct rules for non-humans, but courts have a vague view of claims that animals or divine beings can benefit from copyright protection. A 1997 decree says that a book of (alleged) divine revelations, for example, could be protected if there were (again, supposedly) an element of human order and management. More recently, a court ruled that a monkey cannot sue for copyright infringement. “The courts have consistently ruled that non-human expressions are not eligible for copyright protection,” the board says.
This does not necessarily mean each art with an AI component is not eligible. Thaler stressed that people weren’t involved in any meaningful way, because his goal was to prove that machine-made works could be protected, not just to prevent people from encroaching on the image. (He’s tried unsuccessfully to establish that AI’s inventions can also be patented in the US.) The board’s reasoning takes his statement for granted. So if someone tried to copyright a similar work by claiming it was a product of their own creativity performed by a machine, the outcome could be different. A court could also come to an alternative conclusion about Thaler’s work if he follows up his rejection with a lawsuit.
Still, the Copyright Office emphasizes the importance of human action in machine-produced works. As AI becomes a bigger part of artists’ repertoire, the limits of that conclusion could be tested in the coming years.