Wednesday, August 30, 2023

Who owns the copyright in AI-generated works? - Part 2


                A federal court recently issued a ruling stating that works created by AI are not eligible for copyright protection. There was much rejoicing. Unfortunately, this question is far from being settled, and there are still ways for AI-generated works to receive protection.

                The case[1] involved a piece of art generated by an AI program. The plaintiff, Stephen Thaler, argued that the AI program should be listed as the author of the work, and Thaler should be the owner of the copyright because he owns the program. The court found that copyright law only grants protection to works created by humans. This is the first court ruling on whether an AI-generated work can be subject to copyright protection, and, if it is not appealed, could be influential. It should be noted, however, that the decision is not binding on other courts.

                While this is a good first step, the court did leave open areas that are sure to be fought over later. In its discussion, the court said that human involvement in creating a work could entitle the work to copyright protection. Currently, based on Copyright Office guidance, this is limited to selection and arrangement. So far, there is no bright line regarding how much involvement will be necessary to make an AI-generated work copyrightable. The courts, or Congress, will eventually have to set forth the framework for how much human involvement is needed to enable copyright protection for an AI-generated work. So far, entering prompts into a keyboard and allowing the computer to create something is not enough human involvement.

                The Copyright Office is going to have a lot of trouble with this in the future. The two major instances that addressed AI works so far have voluntarily identified use of the AI in the work. If people do not declare use of an AI program in the work, then the Copyright Office will be unlikely to catch it and refuse the application. This will likely create lots of problems going forward. For instance, you could have people attempting to enforce their copyright for a work that shouldn’t be entitled to copyright protection. Also, if someone believes a registration was improperly issued, people will challenge the copyright registration to try and invalidate them.

                As I mentioned in my previous post on copyright ownership in AI-generated works, and above, only time will settle these issues. We are getting closer to having some guidelines around copyright ownership for these works, but there will likely be some more twists and turns before we know where it stands.

[1] Thaler v. Perlmutter, No. 22-1564 (D.C. Dist. 2023).