Cover Art: “A Recent Entrance to Paradise” created by the Creativity Machine and Steven Thaler.
*Anne Clevenger
I. Introduction
Can an artificial intelligence (AI) program create art subject to copyright protection under the law? Though copyright law has been the subject of many legal disputes in the United States,[1] AI-generated artwork has seen very few days in court.[2] In Thaler v. Perlmutter, the United States District Court for the District of Columbia held that AI-generated artwork does not meet the Copyright Act’s authorship requirement.[3] However, in a lengthy memorandum opinion that analyzed the Copyright Act, the court left open a door to afford copyright protection to AI-generated artwork in the future.[4] Ultimately, the court recognized that AI’s role in copyright law as a tool to create art does not end with the Thaler decision.[5]
II. Origins of Copyrighting the Arts
The U.S. Constitution grants Congress the power to “promote the progress of science and useful arts, by securing for limited times to authors and investors the exclusive right to their respective writings and discoveries.”[6] Roughly two centuries after the Constitution’s creation, Congress codified a creator’s copyright protection over original works.[7] The Copyright Act of 1976 affords protection to “original works of authorship fixed in any tangible medium of expression.”[8] The Supreme Court has clearly stated that protections apply “‘immediately’ upon the creation of ‘original works of authorship fixed in any tangible medium of expression’ provided that those works meet certain requirements.”[9] Thus, a copyright applicant must show (1) authorship of (2) an original work that is (3) fixed in any tangible medium of expression.[10] Although there is a settled presumption that an author must be a human being,[11] whether AI’s role in art is that of an author or merely as an author’s tool to create art remains an open question.
III. Thaler v. Perlmutter Identifies Unanswered Questions about AI’s Role in Copyright.
Stephen Thaler’s copyright application that depicted an AI author was the wrong answer.[12] On August 18, 2023, the United States District Court for the District of Columbia granted a motion for summary judgment in favor of the copyright office’s decision to deny copyright protection to an AI-generated art piece.[13] Thaler developed a computer program he called the “Creativity Machine” that has AI generation skills.[14] Using the Creativity Machine, Thaler generated an art piece entitled, “A Recent Entrance to Paradise.”[15] The piece resembles an impressionistic painting and depicts florals surrounding train tracks that disappear under an archway.[16] Although he played a role in its creation, Thaler listed the author as his “Creativity Machine” on his application for copyright.[17]
The copyright office rejected Thaler’s application for protection of the piece, noting that Thaler’s artwork was not “created by [a human being]”[18] and thus failed to meet the Copyright Act’s authorship requirements.[19] Ultimately, the district court agreed with the copyright office, reasoning that even though the Copyright Act is “designed to adapt with the times,”[20] “human creativity is the [essential condition]at the core of copyrightability, even as that human creativity is channeled through new tools or media.”[21] Despite Thaler’s argument that the Copyright Act lacks a definition for authorship and therefore should protect works generated by AI, the court disagreed, emphasizing that “[h]uman authorship is a bedrock requirement of copyright.”[22]
In its Reply in Support of Their Cross-Motion for Summary Judgment, the Register of Copyright[23] made a policy argument for denying copyright protection to AI generated art.[24] It argued that Thaler’s position focused narrowly on a work’s creation and “disclaims the importance of economic incentives for human creators.”[25] It argued that copyright system that requires human authorship “seeks a balance of the economic incentives for creators and the dissemination of works for the public good.”[26] The District Court agreed, emphasizing that “[a]t the founding, both copyright and patent were conceived of as forms of property that . . . would further the public good by incentivizing individuals to create and invent.”[27] Ultimately, Thaler stands for a clear rejection of copyright claims when AI “autonomously” generates artwork.[28]
IV. AI as an Evolving Art Medium
However, the Thaler court did not close the door on all artwork generated by AI.[29] In fact, the court in Thaler recognized that as AI becomes a more popular tool, courts will face the challenging question of “how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work.”[30] Specifically, the court emphasized that the legal system is “approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic artworks.”[31] In its analysis, the court referred to an 1884 Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony, in which the Court confronted the issue of whether a camera was the author of a photograph or a mere tool to advance its creation.[32] The Court decided that photographs are subject to Copyright protection.[33] In pertinent part, the Court reasoned that a camera is a mere tool for a human author’s creativity because it generates a mechanical reproduction only after the author “pos[es] the [subject] in front of the camera, select[s] and arrang[es] the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines.”[34] Ultimately, the Court in Sarony held that the author of the photograph was a human being who used the camera to capture the image the author first conceptualized.[35] Despite recognizing a path to copyright protection, the Thaler court was bound by Thaler’s application, which described a non-human author rather than a human author using AI as a tool.[36]
V. Conclusion
The Thaler court made a critical distinction between machines as authors of original works and as mere tools to carry out a human author’s vision.[37] The court was clear that while Thaler made a disqualifying choice on his copyright application by marking the “Creativity Machine” as the author,[38] there remains a potential path to copyright protection for AI-generated artwork.[39] Perhaps if future creators mark the AI software not as the author, but rather as a tool for carrying out the artist’s vision, copyright protection may still be afforded. Here, the Thaler court left that door to protection open while emphatically rejecting AI’s authorship in copyright claims.[40]
*Anne Clevenger is a second-year student at the University of Baltimore School of Law. At school, she enjoys her roles as a Law Review staff editor, a National Trial Competition Team member, and a teaching assistant to David Jaros. During her first-year summer, Anne served as a law clerk to the Honorable Jennifer B. Schiffer at the Circuit Court for Baltimore City. In May, she plans to join Venable LLP as a summer associate.
[1] See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884); Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903); Mazer v. Stein, 347 U.S. 201 (1954).
[2] Thaler v. Perlmutter, No. 22-1564, 2023 U.S. Dist. LEXIS 145823, at *21 (D.D.C. Aug. 18, 2023).
[3] Id. at *20–21.
[4] Id. at *17–19.
[5] Id.
[6] U.S. Const. art. I, § 8, cl. 8.
[7] 17 U.S.C. § 102(a).
[8] Id.
[9] Thaler, 2023 U.S. Dist. LEXIS 145823, at *7 (quoting Fourth Estate v. Public Benefit Corp. v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019)).
[10] 17 U.S.C. § 102(a).
[11] Thaler, 2023 U.S. Dist. LEXIS 145823, at *12 (“The 1976 Act’s ‘authorship’ requirement as presumptively being human rests on centuries of settled understanding.”) (emphasis in original).
[12] Id. at *3.
[13] Thaler, 2023 U.S. Dist. LEXIS 145823,at *21.
[14] Id. at *2.
[15] Id.
[16] Id.
[17] Id. at *3.
[18] Id.
[19] Id.
[20] Id. at *10.
[21] Id.
[22] Id. at *11.
[23] The copyright office is responsible for granting or denying copyright applications, assisting Congress in copyright hearings, and testifying on behalf of Congress in copyright matters. See Overview, U.S. Copyright Off., https://www.copyright.gov/about/ (last visited Sept. 5, 2023) (describing the tasks the copyright office performs).
[24] Def.’s Reply in Support of Their Cross-Motion for Summary Judgment at 8, Thaler v. Perlmutter, No. 22-1564, 2023 U.S. Dist. LEXIS 145823 (D.D.C. Aug. 18, 2023).
[25] Id.
[26] Id.
[27] Thaler, 2023 U.S. Dist. LEXIS 145823, at *13.
[28] Id. at *19.
[29] Id. at *17.
[30] Id.
[31] Id.
[32] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 54 (1884).
[33] Id. at 59–60.
[34] Id.
[35] Id. at 60.
[36] Thaler, 2023 U.S. Dist. LEXIS 145823, at *18–19.
[37] See supra part IV.
[38] See supra part III–IV.
[39] See supra part III.
[40] See supra part IV.
University of Baltimore Law Review 