July 26, 2022

Questions Surround AI-Generated Art and Copyright Authorship

If You Can't Tell the Difference, What Does It Matter?
Holland & Knight IP/Decode Blog
Allison M. Lucier
IP/Decode Blog

We previously discussed the idea of who is the owner and who is the creator of AI-generated art. A recent case brought by Stephen Thaler seeks to answer those questions.

In his lawsuit, Dr. Stephen Thaler, President and CEO of Imagination Engines, brought suit against the U.S. Copyright Office for refusing to register his AI-generated artwork. Thaler v. Perlmutter, Case No. 1:22-cv-01564 (D.D.C.) (complaint). Thaler sought to copyright "A Recent Entrance to Paradise," a work that was, by Thaler's own admission, "autonomously created by a computer." In the copyright application, Thaler listed the AI program as the author of the work. The Copyright Office denied the registration because it lacked human authorship.

The Copyright Act of 1976 affords protection to "original works of authorship." In the current lawsuit, Thaler brings up interesting questions of originality, authorship and ownership.

Thaler first argues that there is no requirement that an author of a work must be a human. Specifically, he argues that corporations can be and have been considered authors under the Copyright Act, so the same logic flows to AI.

Thaler next argues that a work created by an AI program can meet the statutory requirements for originality and creativity. He relies heavily on Alan Turing's test for artificial intelligence, which is based on whether a response from a machine is indistinguishable from a response from a human. (This is perhaps best summed up with a line spoken by a robot in HBO's "Westworld" show: "If you can't tell the difference, what does it matter?") According to Thaler, the proper test for copyright protection should be whether an AI-generated work is indistinguishable from a human-generated work. A copy of "A Recent Entrance to Paradise" can be found in the complaint. While we could copy that image here, because it is currently not copyrightable, we will not (we suppose out of respect for the AI program). Could you tell that it was generated by AI?

Lastly, Thaler argues that the Copyright Office is depriving him of ownership of his property by failing to register the copyright, because he made the AI and the AI made the art. He further argues that he owns the work under the "work for hire" doctrine, with the AI operating as the "for hire" part.

Too Soon to Tell

This case is in its early stages, and it may be some time before it reaches a decision, if at all.

However, Thaler is no stranger to seeking intellectual property protection on behalf of his AI. He previously brought suit against the U.S. Patent and Trademark Office for rejecting his patent application for an AI-generated invention. Thaler v. Hirshfeld, Case No. 1:20-cv-903 (LMB/TCB) (E.D. Va.). There, as here, Thaler listed the AI as the inventor. The Patent and Trademark Office rejected the application, stating that the Patent Act requires a human inventor. The U.S. District Court for the Eastern District of Virginia agreed with the Patent and Trademark Office, relying on the fact that the Patent Act uses the term "individual," and that term is used to refer to human beings. The District Court also relied on prior Federal Circuit precedent that held that only natural persons (as opposed to corporations) could be inventors. That case is now on appeal, with oral argument having been heard on June 6, 2022. While the precedent is not in Thaler's favor, the Hirshfeld decision relied heavily on the text of the Patent Act, which does not appear in the Copyright Act.

Related Insights