I have previously posted about the issue of whether US copyright protection is available for art or text created by use of artificial intelligence. On August 18, the United States District Court for the District of Columbia denied copyright protection to the creator of a piece of visual art where the owner of a computer system claimed copyright and listed the computer system as the author. As owner of the computer system, the applicant sought that the computer’s copyright should transfer to him as owner of the machine.
Copyright was denied as the Court held that human authorship is essential for a valid copyright claim.
In this case the claimant invented his own programs designed to create art “akin to the output of a human artist.” The piece in question was modestly entitled “A Recent Entrance to Paradise.”
It should be noted that as soon as a work of art or writing is created it has an automatic copyright and the author can prevent others from using it; registration confirms that the work always has the benefit of copyright protection and that damages can be obtained for unauthorized use. If registration is formally denied, that means the work had no copyright protection from the moment it was created.
There is a bit of procedural law at work here also. When you go to court to question an administrative decision of a governmental agency, the court does not start from ground zero to consider the merits. Rather, the court must recognize the expertise and mission of the governmental agency and thus the “only question properly presented, then, is whether the Register [of copyright] acted arbitrarily or capriciously” or violated proper procedure in the process of reaching its decision.
The Court here reviewed the history of copyright and concluded that the denial was consistent with past practice, rejecting an analogy to protectable photographs created by machine because in photographs there is substantial human input (the photographer’s “mental conception” of the result, the posing, the setting of subject within the frame, the use of light and shadow).
The opinion is well written and has some rich historical interest, discussing the treatment of copyright in the Constitution and quoting James Madison; The curious can access this case, Stephen Thaler vs. Shira Perlmutter, Register of Copyrights, at the US District Court of DC, Civil Action No. 22-1564 (BAH).