Algorithmic Artistry: The Copyright Office Stands Firm in its Fourth Refusal to Register AI Generated Works

 

On December 11, 2023, the Review Board of the U.S. Copyright Office released a statement which affirmed the refusal to a register a work that was created using artificial intelligence (AI) software. The decision announces the fourth time a registrant has been denied the ability to obtain copyright protection for a work created by an AI system. Two requests for reconsideration to accept the AI generated work were not enough to sway the Copyright Office’s views of what is considered human authorship, which is a requirement for protection. The work at issue was a two-dimensional computer-generated image that was titled “SURYAST,” by Ankit Sahni. 

 

 

The first three documented refusals each looked to push to the Copyright Office and Supreme Court to answer questions about AI generated work. In Thaler v. Perlmutter, the Court established that the originator of a copyrightable must be a human being to claim protection. Thus, making protection only available for human authors. Following Thaler, Kris Kashtanova created a graphic novel using an AI powered tool MidJourney. After first being granted the registration, the Copyright Office decided to cancel the registration because of concerns that the human authorship requirement established in Thaler would not be met. The final case is a two-dimensional artwork named Théâtre D’opéra Spatial by Jason Allen who also relied on AI to create the final work. Having inputted over 600 text prompts to produce the work, the Board found that AI system nonetheless executed a response, not a human. Furthermore, the use of the AI system was not disclosed in the application. Relying on the decision from Thaler, the Copyright Office required that sufficient human authorship be included to be an acceptable work. 

 

 

RAGHAV is a custom developed software program application. Put simply, this AI can adapt word and picture prompts and transform them into a new work. With the aid of the system, Ankit Sahni uploaded an original photo of a sunset as well as Vincent van Gogh’s “The Starry Night.” The software was able to extract the style and prominent features of Van Gogh’s famous piece to alter Sahni’s original photo. 

 

Within the Application Sahni submitted in December of 2021, he listed himself and the AI app as the two authors distinguishing what each of the two contributed to the final work. As an original basis for rejection, the board stated the lack of human authorship and specifying the inability to separate human authorship from “the final work produced by the computer program.” The first request for reconsideration in September of 2022 was denied under the same analysis. However, in July of 2023, the second request for reconsideration stated three new arguments. The first was that the software was only assisting Sahni who had all of the control in selecting the photograph and prompting other variables. The second looked to emphasize only the human-authored elements of the work that could be directly traced to Sahni as evidence of his creation in the final work. The third and final argument fought against the classification that the work should be considered a derivative because there is no substantial similarity between Van Gogh’s and Sahni’s work and that the original photo was part of the process of creating the final work. With this argument, Sahni looked to persuade the board to consider the original photo and the final work together as the process by which it was created. 

 

Following an explanation of the legal standard for registerable works, the board was not convinced there was sufficient human authorship. The threshold for originality stated in Feist Publications, Inc. v. Rural Telephone Service sets the bar quite low. The selection of one or a few things is not enough to be protected by copyright. For Sahni, only three inputs were provided to RAGHAV to then develop the final product. This was evidence that RAGHAV was responsible for a majority of the stylistic and artistic decisions of the work. Based on this information, RAGHAV is not simply an “assistive tool” that works like a camera aiding to capture an image but is rather the mastermind in creating the new image. The board goes on to state that the original photo taken by Sahni could be registered. As a preexisting work it contributed to the new derivative AI generated version. In sum, Sahni had “insufficient control” in the creation of the work to register then register it.  

 

 

For the time being, it seems highly unlikely any form of acceptable subject matter for a copyrightable work will be registered if heavily manipulated by AI. If an AI system is found to have been in control of the final product or the ultimate creator, the Copyright Office will not find the registration requirements satisfied. When an original photograph is used in collaboration will a software, the original photo may be protected but the AI generated work will not be. 

 

Yet, AI generated works are not an automatic rejection. What future applicants must consider is the impact the AI may have. The Copyright Office has stated that AI-generated subject matter must be disclosed with a brief description. If the disclosed AI influence does not negate the human authorship threshold, registration may be possible. Lastly, these decisions do not impact works globally. The impact of AI and what may be deemed copyrightable subject matter varies from country to country. If heavily manipulated pieces of work are found to be acceptable in other countries, the Thaler decision may need to be reconsidered to account for the rapidly changing world of technology. But for now, human authorship is the standard, and will continue to be the standard for those seeking copyright protection.