AI algorithm Archives

Tragic Ending: Award-Winning AI Artwork Refused Copyright Registration

by Amol Parikh | Sep 21, 2023 | Copyrights

The US Copyright Office (CO) Review Board rejected a request to register artwork partially generated by artificial intelligence (AI) because the work contains more than a de minimis amount of content generated by AI and the applicant was unwilling to disclaim the AI-generated material. Second Request for Reconsideration for Refusal to Register Théâtre D’opéra Spatial (Copyright Review Board Sept. 5, 2023) (S. Wilson., Gen. Counsel; M. Strong, Associate Reg. of Copyrights; J. Rubel Asst. Gen. Counsel).

In 2022, Jason Allen filed an application to register a copyright for a work named “Théâtre D’opéra Spatial,” reproduced below.

The artwork garnered national attention in 2022 for being the first AI-generated image to win the Colorado State Fair’s annual fine art competition. The examiner assigned to the application requested information about Allen’s use of Midjourney, a text-to-picture AI service, in the creation of the work. Allen explained that he “input numerous revisions and text prompts at least 624 times to arrive at the initial version of the image.” He went on to state that after Midjourney created the initial version of the work, he used Adobe Photoshop to remove flaws and create new visual content and used Gigapixel AI to “upscale” the image, increasing its resolution and size. As a result of these disclosures, the examiner requested that the features of the work generated by Midjourney be excluded from the copyright claim. Allen declined to exclude the AI-generated portions. As a result, the CO refused to register the claim because the deposit for the work did not “fix only [Mr. Allen’s] alleged authorship” but instead included “inextricably merged, inseparable contributions” from both Allen and Midjourney. Allen asked the CO to reconsider the denial.

The CO upheld the denial of registration, finding that the work contained more than a de minimis amount of AI-generated content, which must be disclaimed in a registration application. The CO explained that when analyzing AI-generated material, it must determine when a human user can be considered the “creator” of AI-generated output. If all of a work’s “traditional elements of authorship” were produced by a machine, the work lacks human authorship and the CO will not register it. If, however, a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the CO will register the human’s contributions.

Applying these principles to the work, the CO analyzed the circumstances of its creation, including Allen’s use of an AI tool. Allen argued that his use of Midjourney allowed him to claim authorship of the image generated by the service because he provided “creative input” when he “entered a series of prompts, adjusted the scene, selected portions to focus on, and dictated the tone of the image.” The CO disagreed, finding that these actions do not make Allen the author of the Midjourney-created image because his sole contribution was inputting the text prompt that produced it.

The [...]

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Almost Paradise? No Authorship for AI “Creativity Machine”

by Kavya Rallabhandi | Aug 31, 2023 | Copyrights

The US District Court for the District of Columbia agreed with the US Copyright Office’s denial of a copyright application that sought to register visual art generated by artificial intelligence (AI) because US copyright law only protects works of human creation. Thaler v. Perlmutter, Case No. CV 22-1564 (D.D.C. Aug. 18, 2023) (Howell, J.)

The Copyright Act of 1976 provides immediate copyright protection to any work of authorship fixed in any tangible medium of expression. Applicants may submit their works to the Copyright Office for registration, during which works are reviewed for eligibility for copyright protection. the Copyright Office then registers eligible works, affording the registration owner certain legal benefits and presumptions.

Stephen Thaler, the owner of an AI computer system called the “Creativity Machine,” claimed that his AI independently generated the below visual art entitled “A Recent Entrance to Paradise.”

Thaler sought to register the work with the Copyright Office. The copyright application described the art as “autonomously created by a computer algorithm running on a machine,” identified the Creativity Machine as the author and listed Thaler as the copyright claimant under the work-for-hire doctrine. The Copyright Office denied Thaler’s application because the work lacked human authorship, which is an essential element of a valid US copyright. Thaler twice requested reconsideration of the copyright application, and the Copyright Office twice refused to register the work because of the human authorship requirement. Thaler timely appealed the Copyright Office’s denial to the District Court for the District of Columbia, and both parties moved for summary judgment.

Under the authority of the Administrative Procedure Act, the district court reviewed the Copyright Office’s final agency action through the arbitrary and capricious standard of review (5 U.S.C. § 704). The district court first analyzed whether the AI computer system could own the copyright, then determined whether Thaler was a proper claimant under the work-for-hire doctrine. The district court held that the Copyright Office did not err in denying Thaler’s copyright registration application because US copyright law only protects works of human—not machine—creation. Although copyright law was designed to adapt with the times, the district court stated that there is an underlying and consistent understanding that human creativity is the driving force of copyrightability. While the tools humans use to create copyrightable works (fixed in tangible mediums) are ever evolving and range from pencils to computers, human authorship is a bedrock requirement to copyrightability such that the tools themselves cannot be listed as copyright authors. The district court further held that the plain text of the 1976 Copyright Act requires human authorship since it states that the originator of the copyrightable work must have the capacity for intellectual, creative or artistic labor—a standard that AI has yet to meet. Because AI computers cannot be copyright authors, the district court did not address the work-for-hire analysis.

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Paradise Lost: Art Created by AI Is Ineligible for Copyright Protection

by Jodi Benassi | Mar 3, 2022 | Copyrights

The US Copyright Office Review Board (“Board”) rejected a request to register a computer-generated image of a landscape for copyright protection, explaining that a work must be created by a human being to obtain a copyright. Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Copyright Review Board Feb. 14, 2022) (S. Perlmutter, Register of Copyrights; S. Wilson., Gen. Counsel; K. Isbell, Deputy Dir. of Policy).

In 2018, Steven Thaler filed an application to register a copyright in a work named “A Recent Entrance to Paradise.” Thaler listed as the author of the work the “Creative Machine,” a computer algorithm running on a machine. Thaler listed himself as a claimant and sought to register the work as a “work-for-hire” as the “owner” of the Creative Machine. The Board refused to register the work, finding that it lacked the necessary human authorship. Thaler requested reconsideration, arguing that the “human authorship requirement is unconstitutional and unsupported by either statute or case law.”

After reviewing the work a second time, the Board found that Thaler provided no evidence of sufficient creative input or intervention by a human author. The Board refused to abandon its longstanding interpretation of the Copyright Act, as well as Supreme Court and lower court precedent, that a work meets the requirements of copyright protection only if it is created by a human author. The Board concluded that “A Recent Entrance to Paradise” lacked the required human authorship and therefore affirmed refusal to register. Thaler filed for a second reconsideration.

The Board found that Thaler’s second request for consideration repeated the same arguments as his first request. Relying on the Compendium of US Copyright Office Practices (the Office’s practice manual), the Board found that Thaler provided neither evidence that the work was a product of human authorship nor any reason for the Board to depart from more than a century of copyright jurisprudence.

The Board explained that the Supreme Court of the United States, in interpreting the Copyright Act, has described a copyright as the exclusive right of a human and her own genius going back to 1884. The Board noted that the Supreme Court has repeatedly articulated the nexus between the human mind and creative expression as a prerequisite for copyright protection. The human authorship requirement is further supported by the lower courts. For example, in 1997 the US Court of Appeals for the Ninth Circuit held in Urantia Found. v. Kristen Maaherra that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.”

The Board further explained that federal agencies have followed the courts. In the 1970s, the National Commission on New Technological Uses of Copyrighted Works (CONTU) studied the creation of new works by machines. CONTU determined that the requirement of human authorship was sufficient to protect works created with the use of computers and that no amendment to copyright law was necessary. CONTU explained that “the eligibility of [...]

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