A US Judge has ruled that art produced using artificial intelligence is not eligible for copyright protection, with the lack of “human involvement” being central to the issue. Over the past few years there has been a monumental increase in the quantity of AI-generated art, alongside the rise in the popularity of generative platforms such as OpenAI Inc., Midjourney, and others. As a result, there has been a similar increase in applications being made for copyright protection and it is evident that until recently the US Copyright Office were not entirely sure how to respond to such applications.

In March of this year, the US Copyright Office rescinded a copyright certification that they had issued to author Kris Kashtanova in late 2022. Kashtanova has applied for copyright of a comic book, Zarya of the Dawn, which used AI-generated images. She was originally granted this copyright, however the US Copyright Office later reviewed the application, and decided that only the elements originally created by Kashtanova, such as the writing, would be protected.

Following this, computer scientist Stephen Thaler and founder of Imagination Engines, an artificial neural network technology company, applied for copyright for a work created using his technology titled ‘A Recent Entrance to Paradise’. Thaler has stated that the work “was autonomously created by a computer algorithm running on a machine.” The US Copyright Office rejected the application, stating that, “Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. He has done neither.” Thaler subsequently sued the office.

Judge Beryl A. Howell of the US District Court of Columbia sided with the US Copyright Office in this case, saying that “courts have uniformly declined to recognize copyright in works created absent [of] any human involvement.” Howell even argued that the case was not particularly complex, as Thaler had already stated in his copyright application that he was not directly involved in the creation of the work.

Thaler’s attorney, Ryan Abbott, has said that they will appeal the judgement, commenting that “we respectfully disagree with the court’s interpretation of the Copyright Act.” In his reporting of the case, John Naughton for The Guardian has suggested that it is only a matter of time before AI-generated art will be copyrighted, comparing it to the advent of photography and the 1884 case in which photography became copyrightable – a case which involved a photograph of Oscar Wilde. But until it can be convincingly argued that human creativity lies behind AI-generated art, there will likely be no change in court decisions. Howell firmly stated that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channelled through new tools or into new media.”