In 2018, Stephen Thaler attempted to get copyright protection for a piece of visual art called “A Recent Entrance to Paradise.” The work was created by DABUS, an AI system made by Thaler. Interestingly, Thaler did not apply for a copyright for himself. Rather, he tried to obtain authorship protection for his AI system.

That application was rejected in 2022 due to the Copyright Office’s long-held stance that copyright protection only applies to creative works that come from human authors. Thaler fought the decision, but it was upheld in 2023 by a federal district court judge, who affirmed human authorship as a “bedrock requirement of copyright.”

Again Thaler fought back. Arguing that the ruling would discourage people from investing in and further developing AI, he filed an appeal. 

Just a few weeks ago, on Tuesday, March 18, he lost that appeal, with the judges in the U.S. Court of Appeals for the District of Columbia affirming the original decision – DABUS, Thaler’s AI system, cannot receive copyright protection because that protection only applies to works made by humans.

What About Works Created with “AI Assistance”?

This question represents the swamp we currently find ourselves in. There are so many different AI tools out there. What happens when human beings are involved in the creation of a work, but AI is doing a good portion of that “creating”? The answer, unfortunately, is that the courts, legislators and the U.S. Copyright Office are still wrestling with these new tools and creations.

One constant has been the position of the US Copyright Office, which has rejected numerous applications from artists seeking copyright protection for images they created using Midjourney. Based on this, the Office’s stance would seem to be that having AI generate an image based on human prompts is not enough to qualify for copyright protection – no matter how detailed those prompts are or how many different prompts are used. They said as much in the recent guidance they released.

However, that same guidance also allows for the possibility of copyright protection for works that include material from both AIs and humans. In practice, it is a bit more complicated, but the short explanation is that the aspects of the work created by AI are not eligible for copyright, but the parts made by a human being are. For a further breakdown, I highly recommend reading through the post I wrote on the Office’s guidance or the official document itself.

The Bottom Line? Copyright Demands Human Authorship

There are lots of big questions that still need to be answered regarding AI and copyright. But the one seemingly unbreakable requirement so far is that a human being must be involved in the creation of a work for that work to be eligible for copyright protection.

How involved? In what way? It seems like those are questions the courts will be wrestling with for years to come.