If you were hoping to make a fortune from copyrighted artificial intelligence-generated art, the US Copyright Office has said that is not going to happen.
The US Copyright Office, USCO, has ruled against Steven Thaler in a decision handed down by a three-person board. Thaler tried to copyright a picture created by an algorithm which he called Creativity Machine. Technically, Thaler applied for the copyright on behalf of Creativity Machine.
The board was tasked with reviewing a ruling against granting the copyright back in 2019. It came to the conclusion that the AI-created image did not involve human authorship, which, apparently, is a vital component of copyrights, according to the USCO.
The artwork Thaler wanted to copyright is titled ‘A Recent Entrance to Paradise’ and shows a train track heading into a tunnel. The applicant says the art is part of a series that the AI created around the concept of the afterlife. They are fictional and hallucinatory. However, their primary purpose is not to awe art lovers but to test the current framework on copyrighting AI-generated materials. As such, Thaler needed something generated with minimal human intervention.
The board’s position has re-echoed its view that the human mind must be involved in any creative expression for it to qualify for a copyright. While it notes that there are no direct laws for copyrighting by non-humans, the courts have always taken the stance that animals or divine beings cannot be granted copyrights. To illustrate, a decision on whether a book allegedly containing divine revelations could be copyrighted stated that humans must be involved in the arrangement and curation.
Also, the courts recently ruled that a monkey couldn’t enforce copyright privileges.
Summarizing, the USCO board said, “The courts have been consistent in finding that non-human expression is ineligible for copyright protection.”
However, the ruling should not be interpreted that all art that involves AI is ineligible for copyright. In his submission, Thaler made it clear that humans were not meaningfully involved in making the artwork. This is understandable as he only wanted to test if AI-generated art could get copyright protection.
The board noted that the origin of Thaler’s artwork played a crucial role in the case outcome. He couldn’t prove that his art was the result of human authorship. He also failed to convince the agency to change its century-old rules.
This means the door is still open for somebody to test if they can get a copyright for their creativity carried out by AI. It is even possible that Thaler gets a different outcome by taking the matter to court.
Thaler had tried his copyright test in multiple countries. His effort to get an AI named DABUS recognized as the inventor of two products has been flung out by the US Patent and Trademark Office, the UK Intellectual Property Office, and the European Patent Office. He also failed in Australia and Germany, where he is appealing.
However, Thaler got a patent for one of the products in South Africa, and a judge in Australia ruled that inventions by AI could enjoy patent protection.
AI has been growing in capability and applications, and it was a matter of time before cases like this came up.