The Intersection of Generative AI and Copyright Law: Who Owns AI-Created Works?

Ann Albert

 Copyright principles are increasingly challenged in the age of generative AI. [1]. The rapid advancement of AI technologies is pushing the boundaries of traditional legal frameworks, with courts finding it difficult to apply established copyright principles to emerging digital contexts. AI-generated content highlights the practical uses of generative AI, showcasing its ability to produce text on complex subjects. However, the widespread use of these technologies also requires thoughtful consideration of intellectual property rights, ensuring that the pursuit of innovation does not erode the protections given to original creators.

Section 102(a) of the Copyright Act discusses the general elements for copyright protection:

“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” [2].  

For cases of Generative AI, the relevant element to analyze is the “original works of authorship” prong. To qualify as an “original work of authorship,” the work must be created by a human being. [3]. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” [4]. As a result, the Office will refuse to register a claim if it determines that a human being did not create the work. [5].    

Generative AI has a relatively brief history, with the technology being first introduced during the 1960s as chatbots. [6]. It was a form of artificial intelligence capable of generating high-quality text, images, videos, audio, and synthetic data instantaneously. [7]. However, it wasn’t until 2014, with the development of generative adversarial network (GAN), that generative AI advanced to the level of creating images, videos, and audio that closely resemble recordings of real people. [8]. Today, generative AI plays a significant role in ChatGPT and its variations. [9].

Currently, there are a few cases that have decided these novel issues of generative AI use and whether copyright protections extend to these works. For example, in Thaler v. Perlmutter, the U.S. Copyright Office refused to grant protections to an artwork created by Stephen Thaler's AI program, due to the lack of a “natural person” on the patents' authorship. [10]. Although Thaler argued that the AI algorithm was the author of his work, he still claimed copyright ownership as the author of the algorithm. [11]. The U.S. District Court for the District of Columbia ultimately upheld the Copyright Office’s refusal to register the AI-generated work, emphasizing the longstanding principle that copyright law protects only works of human creation. [12].

Similarly, in Théâtre D’opéra Spatial, the Review Board of the United States Copyright Office found that artist Jason Allen’s work contained more than a de minimis amount of content generated by artificial intelligence, and this content must therefore be disclaimed in an application for registration. [13]. In this case, Allen applied for copyright registration of an AI-generated artwork that won the 2022 Colorado State Fair's Annual fine art competition. [14]. The Copyright Office, aware of the AI involvement, requested exclusion of AI-generated elements. [15]. Allen refused, claiming copyright over the entire work, including the AI parts. [16]. The Office rejected the claim, stating only human-authored content could be protected. [17]. Allen argued his creative input warranted full copyright, but the Office maintained that only his manual edits were eligible for protection. [18].

Both cases emphasize the principle that AI-generated works need sufficient human involvement to receive copyright protection. These cases highlight the growing legal challenges surrounding AI and creativity, reinforcing the need for human contribution in works seeking copyright protection. There are several ongoing generative AI cases waiting to be decided. [19]. Thaler and Théâtre D’opéra Spatial provide some insight into how these courts will rule by underscoring a fundamental principle of copyright law: human creativity is a requirement for copyright protection. However, as more complex generative AI cases arise, courts may determine more nuanced approaches to the extent of human contribution needed for copyright protections.