United States: Can AI Systems Hold Copyrights?

Lately, we are witnessing an uptrend in the discourse over the interfaces between artificial intelligence systems, particularly text and image generators, and intellectual property law, specifically as pertains to copyrights. One main question in this context is if copyrights can protect works created by an artificial intelligence system. A few days ago, a DC District Court judge ruled that the answer to this question is no.

One of the trendiest uses of AI today is AI-based image generators. These generators “create” various images based on uploaded databases, after the user instructs the system which image to produce.

Autonomous Creation

In the case at hand, computer programmer Stephen Thaler applied for a copyright on an image he called “A Recent Entrance to Paradise,” created by an AI-based system called the Creativity Machine. Thaler’s application to the US Copyright Office stated that a computer algorithm running on a machine created the image autonomously. The Copyright Office denied his application. It ruled that, since an artificial intelligence system was the sole creator of the image, without any creative contribution from a human actor, the artwork is not entitled to a copyright.

AI and Copyrights

Thaler did not accept the Copyright Office’s decision and appealed to the court. The court, relying on the guidance published by the Copyright Office in this regard, affirmed its decision. It ruled that human involvement in the creation of a piece of work is an essential component to obtaining copyright protection. The court ruled that since Thaler himself was not involved in the creation of the image, he was not entitled to protection. The court also ruled that, since a computerized AI system cannot hold copyrights, unlike people or companies, Thaler was, in any case, not entitled to copyright protection. This holds true even though Thaler was the one who instructed the AI system on which image to create and how.

Another salient point in this context is that the ruling does not specify the minimum requisite threshold of human involvement in the creation of an image to determine that the human was the one to create it.

This ruling comes in the wake of a similar decision by the US Copyright Office. In that case, Kris Kashtanova created a graphic novel entitled “Zarya of the Dawn” with the help of the Midjourney AI system. Here, too, the Copyright Office ruled that the graphic novel constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.

The Situation in Israel

As opposed to the US, the Israeli Ministry of Justice’s position is less decisive. It holds that works produced using AI systems do not have blanket immunity from liability for infringement of intellectual property laws. Rather, each case should be examined individually on its merits and the work in question compared to works already included in the databases.

Considering the frequent developments to legal positions with regard to artificial intelligence, we recommend that our clients thoroughly examine copyright aspects when developing and using AI systems.

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Dr. Avishay Klein, the head of Barnea Jaffa Lande’s Privacy and Cyber Department, and Adv. Ran Karmi, an associate in the Antitrust and Competition Department, are at your service if you have any additional questions in this regard.