Key Questions Remain After 'Autonomous' GenAI Work Denied Copyright Protection by Federal Court

On August 18, 2023, the U.S. District Court for the District of Columbia granted summary judgment in favor of the U.S. Copyright Office, holding that digital artwork created “autonomously” by an artificial intelligence program lacked human authorship and thus was not copyrightable. Thaler v. Perlmutter et al., 1:22-cv-01564 (D.D.C. Aug. 18, 2023).

The sole issue before the court was “whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright.” The court easily answered “no” on the facts presented:

On the record designed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No. 

But, the court acknowledged that much thornier issues await in future cases:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.

The court’s use of “and more” in its laundry list of open questions reflects not only the uncertainty in application of current copyright law to GenAI tools, but also the broader uncertainty regarding such tools across many legal and regulatory domains.  

While this case may put to bed a relatively “easy” question regarding copyright protection for GenAI works with no human involvement, the rubber will really meet the road in future cases where varying degrees of human involvement are present.