The US Copyright Office rejected an application to allow an AI to copyright a piece of art. , a three-member board, reviewed last week’s 2019 ruling against Steven Thaler. Thaler tried to copyright a picture for Creativity machine, an algorithm he claimed was his. The board concluded that Thaler’s AI-created image did not include an element or “human authorship” — which is necessary for protection.
Creativity Machine’s “A Recent Entrance to Paradise,” is the name of its work. Thaler describes it as a “simulated near-death encounter” where an algorithm reprocesses photos to create hallucinatory imagery and a fictional narrative on the afterlife. Importantly, the AI is supposed to do this with very minimal human intervention. This has been a problem for the Copyright Office.
The board declared that copyright is a fundamental element because of “the nexus” between human creativity and the human mind. Although copyright law doesn’t explicitly outline rules for nonhumans, courts have remained skeptical about claims that animals or divinities can benefit from copyright protection. For example, a 1997 decision stated that a book of divine insights could be considered protected if there is (again, apparently) an element or curation by humans. Recently, a court ruled that a monkey cannot sue for copyright infringement. The board stated that the courts had consistently found that non-human expression was not eligible for copyright protection.
It doesn’t necessarily mean art with an AI component is invalid. Thaler stated that humans weren’t involved as his goal was not to infringe on the image but to prove that machine-created work could be protected. (He’s unsuccessfully attempted to show that AIs could patent inventions in America. The board takes his explanation as a given. The board might not grant copyright to a similar work if someone tried it by claiming that it was their creation, executed by a machine. Thaler could also be sued to get a different conclusion.
The Copyright Office emphasizes the importance of human agency in machine-produced work. This conclusion could prove to be a challenge for years to come as AI becomes a larger part of artists’ repertoires.