What Challenges Do Artists Face When Using Generative AI?

September 27, 2023 Andrea Timpone
Art Law copyright Intellectual Property Litigation

Seeing that September 18th was the last day to file an appeal following last month’s District Court of Columbia decision in Thaler v. Perlmutter, its holding that artwork solely (or autonomously) created by artificial intelligence is not eligible for copyright protection will remain intact for now.

The Court evaluated a work recently refused registration by the U.S. Copyright Office, entitled “A Recent Entrance to Paradise.” The claimant, Stephen Thaler invented a computer algorithmic program he called the “Creativity Machine” to generate “A Recent Entrance to Paradise,” “without any human involvement.”

“A Recent Entrance to Paradise”

Important things to take away from this ruling:

  • Copyright law only protects works created by humans, because only humans have the capacity for intellectual, creative, and artistic labor.
  • Works autonomously generated by an AI system are not copyrightable due to their lack of human involvement.
  • Even though copyright law has stretched to cover works created with or involving similar technology, it has never gone as far as to cover works generated by new forms of technology that lack human input. However, the Copyright Office would not take a categorical position to deny registration “merely because a computer may have been used in some manner in creating the work. [For example,] a typewriter is a machine that is used in the creation of a manuscript, but does not result in the manuscript being uncopyrightable.”[1]
  • Although copyright protection is presumed to exist upon a work’s creation, if the Copyright Office decides that the work lacks copyrightable subject matter, it will be deemed to have never been subject to copyright protection at all.

It still remains unanswered as to how much human input is necessary to qualify the user of an AI system as an “author” of AI generated work, and, if granted copyright protection, what the scope of the protection will be over the final product.

Speak with an IP Lawyer at GS2Law in confidence.  If you would like to know more about copyright protection and enforcement, we encourage you to get in touch.  To schedule a confidential consultation with an IP lawyer at GS2 Law, please request an appointment online today. 


[1] United States Copyright Office, Artificial Intelligence and Copyright (August 30, 2023) https://www.copyright.gov/ai/docs/Federal-Register-Document-Artificial-Intelligence-and-Copyright-NOI.pdf