AI-generated art cannot be copyrighted, rules a US Federal Judge

Wes DavisAug 19, 2023 at 6:42 PM EDT

Illustration by Alex Castro / The Vergenone

“United States District Court Judge Beryl A. Howell ruled on Friday that AI-generated artwork can’t be copyrighted, as noted by The Hollywood Reporter. She was presiding over a lawsuit against the US Copyright Office after it refused a copyright to Stephen Thaler for an AI-generated image made with the Creativity Machine algorithm he’d created.

Thaler had tried multiple times to copyright the image “as a work-for-hire to the owner of the Creativity Machine,” which would have listed the author as the creator of the work and Thaler as the artwork’s owner, but he was repeatedly rejected. 

After the Office’s final rejection last year, Thaler sued the Office, claiming its denial was “arbitrary, capricious ... and not in accordance with the law,” but Judge Howell didn’t see it that way. In her decision, Judge Howell wrote that copyright has never been granted to work that was “absent any guiding human hand,” adding that “human authorship is a bedrock requirement of copyright.”

Stephen Thaler’s AI-generated artwork cannot be copyrighted.

Steven Thaler and/or Creativity Machinenone

That’s been borne out in past cases cited by the judge, like that one involving a monkey selfie. To contrast, Judge Howell noted a case in which a woman compiled a book from notebooks she’d filled with “words she believed were dictated to her” by a supernatural “voice” was worthy of copyright. 

Judge Howell did, however, acknowledge that humanity is “approaching new frontiers in copyright,” where artists will use AI as a tool to create new work. She wrote that this would create “challenging questions regarding how much human input is necessary” to copyright AI-created art, noting that AI models are often trained on pre-existing work.

Stephen Thaler plans to appeal the case. His attorney, Ryan Abbot of Brown Neri Smith & Khan LLP, said, “We respectfully disagree with the court’s interpretation of the Copyright Act,” according to Bloomberg Law, which also reported a US Copyright Office statement saying it believed the court’s decision was the right one.

Nobody really knows how things will shake out around US copyright law and artificial intelligence, but the court cases have been piling up. Sarah Silverman and two other authors filed suit against OpenAI and Meta earlier this year over their models’ data scraping practices, for instance, while another lawsuit by programmer and lawyer Matthew Butterick alleges that data scraping by Microsoft, GitHub, and OpenAI amounted to software piracy.“