AI is a gold mine for novel legal issues. Let’s just start with the intellectual property considerations: what if AI creates a painting or other piece of art? Who would own it? Does the AI Picasso own the rights to their masterpiece? Or is it ours for the taking? Well, turns out the answer (so far) is neither. A federal court just found that you can’t take AI generated artwork is not copyrightable.

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The AI works for me

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Let us set the stage for you: Stephen Thaler developed a “Creativity Machine,” a computer system that generates artwork. After creating a painting, Thaler did what anyone would do and sought to copyright the art. The AI was simply a work-for-hire for Thaler and the painting was his, right? Wrong. The Copyright Office denied the application and explained that the painting “lacke[d] the human authorship necessary to support a copyright claim.” Thaler then took two stabs at reconsideration, which were both denied for the same reason.

Thaler appealed in federal court, but alas, the court agreed with the Register’s reasoning. Relying on the Copyright Act of 1976, prior Supreme Court interpretations of copyright law, and common law doctrine of property, the court agreed that human authorship is crucial to copyright registration.

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We have some questions

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While the court ruled against Thaler and his attempt at copyrighting the AI artwork, they did bring up some interesting (and unanswered) questions:

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1. How much human input is necessary to qualify the user of an AI system as an “author” of a generated work?
2. What is the scope of the protection obtained over the resultant image?
3. How do you assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works?
4. How will copyright best be used to incentivize creative works involving AI?

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Expect to see these addressed over the next few years! Until then, we all have no idea what is going on.