With the increasing development and use of AI systems for all manner of purposes, one question naturally arises in the intellectual property world – is artwork generated by AI systems copyrightable? The answer, as with many legal questions, is that it depends. In the instance under discussion, the person who created the AI system generated artwork and filed a copyright application listing the AI system itself as the “author” of the artwork. The U.S. Copyright Office denied registration because there was no human authorship in the work for which registration was sought.
After administrative appeals within the Copyright Office that upheld the denial of registration for lack of human authorship, as well, as the District of Columbia federal district court also upholding the denial on the same grounds, the owner of the AI system appealed to the United States Court of Appeals for the D.C. Circuit.
In a recent opinion by the D.C. Circuit Court of Appeals, the denial of registration was again upheld. The Court of Appeals addressed the question, “Can a non-human machine be an author under the Copyright Act of 1976?” The answer was “no.” The Court indicated that an AI system “cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.”
Based on a detailed analysis, the Court determined that numerous provisions of the Copyright Act, a detailed federal statutory framework, supported and, in fact, mandated the requirement for human authorship. The fact that copyrights can be owned as property requires the ability for an author to have the legal capacity to own property. A machine does not have such capacity. The fact that copyright duration is based on the author’s lifespan supports a requirement for human authorship. Copyright rights can be passed to the next of kin, which makes no sense if an author is a machine. Suffice it to say that the Court went to great lengths to explain how the language of the Copyright Act itself supports the requirement for human authorship.
The Court also noted that the Copyright Office’s own rules requiring human authorship date back over 50 years and serve to reinforce human authorship requirements in the Copyright Act.
Because the human proponent of copyright registration, in this case, indicated to the Copyright Office that the work for which registration was sought was generated autonomously by a computer system, the question of whether a copyright registration could be secured where human-provided directions and instructions to an AI system to create an artistic work, was not before the Court. That would be the more interesting question in some respects – if human directions are provided, and the authorship claimed is a human, would a registration issue?
The takeaway here is that AI systems cannot be authors or owners of copyrighted materials. Human authorship and ownership is required. If you have an AI system generating potentially copyrightable work, it would be wise to consult a copyright attorney and discuss the details of how your system works and whether copyright registration is possible.
