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  • Writer's picturePaul Peter Nicolai

Work Generated by Artificial Intelligence Alone Is Not Eligible for Copyright Protection

As more businesses seek to use artificial intelligence (AI) to generate content, it is vital to understand the scope of copyright protection that might be afforded to that content. 


The United States District Court for the  District of Columbia confirmed that artwork generated autonomously by AI is not entitled to protection under the Copyright Act. This ruling sets the baseline for those seeking ownership and copyright protection for AI-generated content.


The copyright registration application listed the work's author as the Creativity Machine, which autonomously created the image. The human who applied did not claim he had any role in creating the image. He said he owned the Creativity Machine and sought to register this computer-generated work as a work-for-hire. 


The Copyright Office denied his application because the work lacked the human authorship necessary to support a copyright claim. The Copyright Office denied two requests for reconsideration,


The Copyright Office believed that the Copyright Act only protects human authors. It compared AI-generated work to other works created by non-human authors that were denied registration in the past, including holy or spiritual songs authored by the "holy spirit" or other "divine beings," even when working through a human vessel.


The Copyright Office rejected the work-made-for-hire argument on the same basis, explaining that while the doctrine does allow a human author to vest ownership of a copyright in a corporate, non-human employer by contract, it does not imply that the employer created the copyrighted work. The Copyright Office explained that AI is not a legal entity that could enter into such a contract or be considered an employee.



After exhausting his administrative remedies, a suit was filed against the Copyright Office, asking that its decision be reversed as arbitrary and capricious, violating the Administrative Procedure Act. 


Granting the Copyright Office's motion for summary judgment, the Court affirmed that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media. The human authorship requirement follows from the plain text of the Copyright Act, which provides protection only for works done by or under the authority of an author, meaning an originator with the capacity for intellectual, creative, or artistic labor.


The decision is consistent with the longstanding position of the US Copyright Office that a copyright requires human authorship. 


The Court also rejected the argument that granting registration to AI-generated work would further the underlying goals of the Copyright Act to incentivize creativity, science, and the useful arts, concluding that non-human actors need no incentivization with the promise of exclusive rights under United States law. Noting that the scope of its review was limited only to whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright, the Court also declined to address other legal theories.


The Court recognized its review was limited to the record before it. The Court focused on whether any work would be eligible for copyright without human involvement in creating the work. It responded with a clear and straightforward no. 


The Court avoided the challenging questions of how much human involvement is necessary, the appropriate scope of copyright protection that should be granted to AI-generated works, how to assess the originality of AI-generated works, and how to incentivize the creative use of AI best. It left the door open for future cases to address these questions concerning the copyrightability of AI-generated work.



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