Category: AI Copyright – Human Authorship

Copyright Authorship: the impact of the “human authorship” requirement on copyright interests in AI-generated and AI-assisted work, comprising the question whether copyright protection exists for works created by or with the assistance of an AI tool, and the extent to which a human may claim a copyright interest in AI-generated and AI-assisted work.

Last Exit From Paradise

Copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”

Stephen Thaler's AI-generated artwork, "A Recent Entrance to Paradise"

The United States Supreme Court has put an end to Stephen Thaler’s crusade for machine rights. Okay, that’s the sensational news article way of putting it.  He wasn’t really crusading for machine rights. He was trying to establish a precedent for claiming copyright in AI-generated works.

I first wrote about this back in May, 2022 (“AI Can Create, But Is It Art?”). At that time, the U.S. Copyright Office had denied registration of “A Recent Entrance to Paradise.” This was an image that was generated by  Thaler’s AI tool, the Creativity Machine. Thaler had sought to register it as a work for hire made by the machine. The Copyright Office denied registration because it lacked human authorship.

The decision was consistent with appellate court decisions suggesting that stories allegedly written by “non-human spiritual beings” are not protected by copyright, although a human selection or arrangement of them might be. Urantia Foundation v. Kristen Maaherra, 114 F.3d 955 (9th Cir. 1997).  Neither are works created by non-human animals, such as a monkey selfie.

Thaler sought review by the federal district court. Judge Howell affirmed the Copyright Office’s decision, writing that copyright law “has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.”

The Court of Appeals affirmed the refusal of registration. Thaler petitioned for review by the United States Supreme Court. On March 2, 2026, the Supreme Court denied review, without comment.

An argument that Thaler advanced in the petition for certiorari was bascially that because images output by a camera are protected by copyright (See Burrow-Giles Lithographic v. Sarony), images generated by a computer should be, too.

The Copyright Office has since published guidance explaining that using AI as a tool in the creative process does not categorically rule out copyright protection. Rather, assessments must be made on a case-by-case basis about the nature and extent of human creativity that was contributed. I discuss the Copyright Office’s three Copyright and Artificial Intelligence reports in Generative AI: The Top 12 Lawsuits.

The narrowest interpretation of the Supreme Court’s denial of certiorari is that it did not see a need to disturb the ruling that a machine cannot be an “author,” for purposes of copyright law. The facts of the case did not present an opportunity to opine on whether, and under what circumstances, a human can claim to be an author of an AI-assisted creation.

Trademark News

Buc-ee’s is a popular chain of gas-and-convenience stores in the South. It has filed a trademark infringement lawsuit against Mickey’s gas stations.

(Read more about Buc-ee’s lawsuit against Mickey’s.)

According to the complaint:

Consumers are likely to perceive a connection or association as to the source, sponsorship, or affiliation of the parties’ products and services, when in fact none exists, given the similarity of the parties’ logos, trade channels, and consumer bases.

Here are the two logos, side by side for comparison:

Buc-ees and Mickey's logos (cartoon beaver and moose)

Trademark infringement occurs when one company’s logo or other mark is used in commerce in a way that is likely to confuse consumers about the source of a product or service. What do you think, folks? Might a weary traveler mistake a moose for a beaver?

Polite responses only, please.

Court of Appeals Affirms Registration Refusal for AI-Generated Output

Court of Appeals Affirms Registration Refusal for AI-Generated Output

In 2019, Stephen Thaler developed an AI system he called The Creativity Machine. He generated output he called A Recent Entrance to Paradise. When he applied to register a copyright claim in the output, he listed the machine as the author. He claimed ownership of the work as a work made for hire. In his application, he asserted that the work was autonomously created by a machine. The Copyright Office denied the claim on the basis that human authorship is a required element of a copyright claim.

On appeal, the United States district court affirmed the Copyright Office’s decision. Thaler attempted to argue, for the first time, that it was copyrightable because he provided instructions and directed the machine’s creation of the work. The district court found that he had waived that argument.

The Court of Appeals Affirms

Thaler sought review in the Court of Appeals for the Federal Circuit. On March 18, 2025, the Court of Appeals affirmed. The Court cited language in the Copyright Act that suggested Congress intended only human beings to be authors. The Court did not reach the question whether the Copyright Clause of the U.S. Constitution might protect machine-generated works if Congress should choose someday to extend copyright protection to these kinds of materials.

The Court held that the question whether Thaler could claim authorship on the basis of the fact that he made and directed the operation of the Creativity Machine has not been preserved for appeal.

Update: Thaler sought Supreme Court review. Read what happened in Last Exit from Paradise. 

 

Copyrights in AI-Generated Content

Copyright registrations are being issued for works created with generative-AI tools, subject to some important qualifications. Also, Internet Archves revisited (briefly)

The long-awaited U.S. Copyright Office report on the copyrightability of works created using AI-generated output, is here. The legality of using copyrighted works to train generative-AI systems is a topic for another day.

Key takeaways:

  • Copyright protects the elements of a work that are created by a human, but does not protect elements that were AI-generated (probably the key take-away from the Report) The is the “human authorship” requirement that the Copyight Office invoked in denying registration of Stephen Thaler’s AI-generated output. I wrote about that a couple of years ago in “AI Can Create But Is It Art?” and also have commented on new AI copyright guidance from the Office before. 
  • The Copyright Office believes existing law is adequate to deal with AI copyright issues; it does not believe any new legislation is needed
  • Using AI to assist in the creative process does not affect copyrightability
  • Prompts do not provide sufficient control over the output to be considered creative works.
  • Protection exists for the following, if they involve sufficient human creativity:
    • Selection, coordination, and arrangement of AI-generated output (compilation)
      •  Modification of AI-generated content  (Derivative works)
        • Human-created elements distinguishable from AI-generated elements.

Prompts

A key question for the Copyright Office was whether a highly detailed prompt could suffice as human creative expression. The Office says no; “[P]rompts alone do not provide sufficient human control to make users of an AI system the authors of the output. Prompts essentially function as instructions that convey unprotectable ideas. While highly detailed prompts could contain the user’s desired expressive elements, at present they do not control how the AI system processes them in generating the output.”

How much control does a human need over the output-generation process to be considered an author? The answer, apparently, is “So much control that the AI mechanism’s contribution was purely rote or mechanical. “The fact that identical prompts can generate multiple different outputs further indicates a lack of human control.”

Expressive prompts

If the prompt itself is sufficiently creative and original, the expression contained in the prompt may qualify for copyright protection. For example, if a user prompts an AI tool to change a story from first-person to third-person point of view, and includes the first-person version in the prompt, then copyright may be claimed in the story that was included in the prompt. The author could claim copyright in the story as a “human-generated element” distinguishable from anything AI thereafter did to it. The human-created work must be perceptible in the output.

Registration of hybrid works

The U.S. Copyright Office has now issued several registrations for works that contain a combination of both human creative expression and AI-generated output. Examples:

Irontic, LLC has a registered copyright in Senzia Opera a, a sound recording with “music and singing voices by [sic] generated by artificial intelligence,” according to the copyright registration. That material is excluded from the claim. The registration, however, does provide protection for the story, lyrics, spoken words, and the selection, coordination, and arrangement of the sound recording.

Computer programs can be protected by copyright, but if any source code was generated by AI, it must be excluded from the claim. Thus, the Adobe GenStudio for Performance Marketing computer program is protected by copyright, but any source code in it that was AI-generated is not.

A record company received a copyright registration for human additions and modifications to AI-generated art.

As an example of a “selection, coordination and arrangement” copyright, there is the registration of a work called “A Collection of Objects Which Do Not Exist,” consisting of a collage of AI-generated images. “A Single Piece of American Cheese,” is another example of a registered copyright claim based on the selection, coordination, or arrangement of AI-generated elements.

Woman's face superimposed on a sheet of computer programming code, signifying an AI-generated image

China

A Chinese court has taken a contrary position, holding that an AI-generated image produced by Stable Diffusion is copyrightable because the prompts he chose reflected his aesthetic choices.

Internet Archive Postscript

In January, the Second Circuit Court of Appeals affirmed the decision in Hachette Book Group, Inc. v. Internet Archive. This came as no surprise. A couple of important things that bear repeating came out of this decision, though.

First, the Court of Appeals reaffirmed that fair use is an affirmative defense. As such, the defendant bears the burden of establishing the level of market harm the use has caused or may cause. While a copyright owner may reasonably be required to identify relevant markets, he/she/it is not required to present empirical data to support a claim of market harm. The defendant bears the burden of proof of a fair use defense, including proof pertinent to each of the four factors comprising the defense.

Confusion seems to have crept into some attorneys’ and judges’ analysis of the issue. This is probably because it is well known that the plaintiff bears the burden of proof of damages, which can also involve evidence of market harm. The question of damages, however, is separate and distinct from the “market harm” element of a fair use defense.

The second important point the Second Circuit made in Hatchette is that the “public benefit” balancing that Justice Breyer performed in Google LLC v. Oracle America, Inc. needs to focus on something more than just the short-term benefits to the public in getting free access to infringing copies of works. Otherwise, the “public benefit” in getting free copies of copyright-protected stuff would outweigh the rights of copyright owners every time.  The long-term benefits of protecting the rights of authors must also be considered.

True, libraries and consumers may reap some short-term benefits from access to free digital books, but what are the long-term consequences? [Those consequences, i.e.,] depriv[ing] publishers and authors of the revenues due to them as compensation for their unique creations [outweigh any public benefit in having free access to copyrighted works.]

Id.

They reined in Google v. Oracle.

Thomas James is a human