AI Generated Work Deserves Copyright, Creator Tells DC Circuit

There is nothing in copyright law barring protection for artificial intelligence-generated art, and the creator and user of an AI that produced a work clearly owns that right, a computer scientist told the DC Circuit.

A lower court erroneously found Stephen Thaler’s work ineligible for copyright protection because it was “autonomously created,” he said in a brief to the US Court of Appeals for the DC Circuit Monday. But Thaler’s creation of the Creativity Machine provides him “multiple legal bases to be the rightshoolder” of a work that clearly qualifies as a registrable creative work, he said.

“The word ‘autonomous’ does not mean that an AI system is somehow magical or intergalactic,” Thaler argued.

The appeal represents the opening shot in the first circuit court battle over the boundaries and parameters of copyright law’s application to AI-generated works. It carries massive implications for creative industries given the rapid proliferation of AI systems and AI-produced work, with rights ownership and ability to enforce those rights—hanging in the balance.

The US Copyright Office refused to register Thaler’s two-dimensional art titled “A Recent Entrance to Paradise” because it was generated by a machine.

The US District Court for the District of Columbia agreed, finding “courts have uniformly declined to recognize copyright in works created absent any human involvement,” citing cases where copyright protection was denied for celestial beings, a cultivated garden, and a monkey who took a selfie.

Thaler’s brief to the appeals court argued the art is clearly a creative work of authorship under the Copyright Act, and that the Copyright Office has “no support for its view that works of authorship require natural persons.” Thaler, as owner, creator, and user of Creative Machine to create the work, is the only possible owner of its copyright, he said. He either owns it because he’s the work’s author, it’s a work for hire, because his property produced it, or because he has the right of first possession, he said.

Brown Neri Smith & Khan LLP represents Thaler.

The case is Stephen Thaler v. Shira Perlmutter, D.C. Cir., No. 23-5233, Appellate brief 1/22/24.