Imagine That IP Law Blog

AI-generated images have taken the internet by storm. From (occasionally terrifying) “deep fakes” to whimsical images of King Charles breakdancing, AI-generated images have entered the mainstream.

On August 18^th, in the case Thaler v. Perlmutter et al., Case No. 1:22-cv-01564 (U.S. District Court for the District of Columbia), Judge Howell of the DC Circuit held that artificial intelligence cannot be an author under U.S. Copyright Law.

The copyright application before the Court claimed that a particular artificial intelligence (“AI”) system was the “author” and the system transferred ownership to the applicant. With this narrow fact pattern, where there is no claim of human involvement in the authorship of the artwork, the court easily found no basis in the Copyright Act for authorship to vest in a non-human.

A similar issue has come before various courts in the past. In Naruto v. Slater, the Ninth Circuit dismissed a claim of authorship in a non-human in the famous “monkey selfie” case.  Judge Howell’s decision applies similar logic to the AI-realm, noting that the Copyright Act is not designed to protect authorship outside of humanity.

So how can anyone own a copyright in AI-generated images? Unless there is some future legislation that provides AI with the same rights as humans under the Copyright Act, artificial intelligence will likely not be considered any more than a tool with which humans create.

People commonly use tools such as paint brushes and camera lenses to create art, but those tools cannot be the authors for the purpose of a copyright registration. Directing an AI system to do your bidding and create alleged new works of art based on your instructions does not yet meet the test. This area is developing quickly, and remains at the cutting edge of intellectual property law.