Court Rules AI Work Can't Get Copyright--But There's a Huge Catch

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No Copyright for AI Works? Not So Fast

A Federal appeals court ruled yesterday that works created entirely by AI can’t get copyright protection in the US.

That sounds like a nail in the coffin for the protectability of AI art, right? Not so fast—there’s a huge caveat you need to understand.

First, a disclaimer—I’m an AI expert, not a lawyer. This isn’t legal advice, and you should consult your own lawyer before making any decisions about your own works or your business.

So, what happened with this case? My new video breaks it down:

Basically, this case relates to a very specific work of art, created by a very specific artist named Stephen Thaler.

In 2012, Thaler designed an early generative AI system he called the Creativity Machine. It great a lovely painting entirely on its own, which Thaler called “A Recent Entrance to Paradise.”

Thaler reportedly felt that his machine was sentient. So he decided to apply for copyright protection for its artwork, with the machine itself listed as the sole creator.

The US Copyright Office said no way. In the US, you need to be a human to get copyright protection for your work.

There have been some extremely fun legal cases testing this. In 2011, a nature photographer was photographing a female Macaque monkey, when the monkey took his camera and snapped a selfie.

The photographer tried to apply for a copyright on the monkey’s behalf. The Copyright Office said no, citing the fact that you need to be a human to get a copyright.

With Thaler, the copyright office—and now the courts—seem to be taking the same approach. Because Thaler listed a machine as the sole author of his painting, the courts have ruled that he can’t get a copyright for it.

In reality, though, most human artists would never list a machine as the sole author of their work.

Most artists who use AI use it as a jumping off point. Maybe you make a base image in Midjourney, and then extensively modify and edit it in photoshop—or use it for a collage with your own, human created works.

Or maybe you use ChatGPT to write a chapter of your novel, and then extensively edit it to add your own voice.

In those cases, human artists would likely say that they are the creator of the work, and that the AI was just an assistant.

And the Copyright Office seems to be indicating that collaborating with AI is fine. If Thaler listed himself as the author of A Recent Entrance to Paradise and disclosed his use of AI, it’s possible he could get copyright protection for the work.

Because he feels his system is sentient, he isn’t going to do that. So he’ll likely need to keep fighting his legal battle.

But for most creators, the court’s decision actually holds much more useful real-world implications. The court did not say that using AI prevents you from getting copyright protection for your art or writing—in fact, it said that AI use might be fine, as long as the work still includes plenty of your own, human creativity.

So what looks at first glance like a nail in the coffin for AI art is actually anything but. Rather, this case shows that while people like Thaler who list machines (or monkeys) as the authors of work can’t get protection, those who collaborate with AI might be able to secure copyright—and all the protections that come with it.

Again, my video has more analysis.

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