Copyrightability Of AI Generated Art; Case Analysis Of Thaler v Perlmutter



AI generated art is any form of digital artwork, such as images, text, audio, or video, created with the assistance of artificial intelligence. Artificial Intelligence is the simulation of human cognition by machines, particularly computers. For any work to be accorded copyright protection, it must meet few essential criteria. Firstly, the work must be a work of human authorship, the work must be an independent creation and must be original.

Copyright and Artificial Intelligence


Copyright protects artistic expression, traditionally made by humans, regarding music, films, literature, and so on. However, rapid advancements in technology have made AI capable to the point where it can create original works without direct human intervention, and this raises questions about who should be considered the creator and copyright owner of such works. In such cases, there are two scenarios that arise:

  1. Works created by AI with human guidance: In these cases, the creative inputs provided by humans play a significant role, and copyright ownership can be attributed to the human contributors.
  2. Works created by AI without human guidance: When AI generates works independently, without direct human input, the issue of authorship becomes more complex. Attribution of authorship to AI itself requires careful consideration of legal and conceptual frameworks


Copyright Registration Of Works Containing AI Generated Material


There have been recent developments in usage of sophisticated artificial intelligence that is capable of producing expressive material. The guidelines were released by The U.S. copyright office on March 16, 2023.


The guidelines discuss the requirement of human authorship in order to copyright any material, it describes the meaning of the term ‘author’, which is used in both the constitution and copyright act, excludes non-humans. Further, In the 1973 edition of the Compendium of Copyright Office Practices, the office warned that it would not register materials that did not “owe their origin to a human agent.” The second edition of the Compendium, published in 1984, explained that the term authorship implies that, for a work to be copyrightable, it must owe its origin to a human being. This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship.


Thaler v Perlmutter


Plaintiff Stephen Thaler owned a computer system called “creativity machine.” The said machine having artificial intelligence generated a piece of visual art of its own accord titled “A Recent Entrance to Paradise”. Thaler sought to register the copyright for the Art at the U.S. Copyright Office, listing creativity machine as the author and explaining that the copyright should transfer to him as the owner of the machine.


The Copyright Office denied Thaler’s application as the Art lacked the human authorship necessary to support a copyright claim, noting that copyright law only extends to works created by human beings. Thaler requested a reconsideration of his application, which was denied by the Copyright Office. Consequently, Thaler challenged its decision at the United States District Court, District of Columbia.


The question arises that whether the Copyright Office acted arbitrarily in denying Thaler’s application?


It was concluded from the discussion that “this particular work will not support a claim to copyright” because the work lacked human authorship and thus no copyright existed in the first instance.


Plaintiff correctly observes that throughout its long history, copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper.




Under the Copyright Act, 1976 of the United States, it is explained that copyright is the original work of the authorship fixed in any tangible medium of expression. The register in the following case concluded that “A entrance to Paradise” cannot claim copyright as it lacked human authorship. Further, they have also tried to interpret the definition of authorship, explaining that authorship is synonymous with human creation and has persisted even as the copyright law has otherwise evolved.


Judge Howell reasoned that although copyright is “designed to adapt with the times and contemplates new and unforeseen mediums of expression, the requirement of human authorship – and, more specifically, human creativity – is the immutable “sine qua non at the core of copyrightability”.


Finally, the Court highlighted that if the right did not vest with the Creativity Machine in the first place, there could be no transfer of the copyright to Thaler. Plaintiff’s motion for summary judgment was therefore denied and defendants’ cross-motion for summary judgment was granted.




AI-generated art can be a complex issue when it comes to copyright in the United States. The key reason why AI-generated art often cannot be copyrighted is because it is considered to lack the human creativity and originality that is typically required for copyright protection.


Copyright law in the United States protects original works of authorship that are fixed in a tangible medium of expression. This protection is granted to individuals who create and express themselves in a unique and creative way. While AI can produce art, it does so by processing data and following algorithms, rather than making creative decisions based on personal experiences, emotions, or aesthetic choices. In essence, AI doesn’t possess the inherent creative spark or consciousness that is traditionally associated with human artists.


Contributor: Bhumika Sharma


Interns and Paralegals.


As per the rules of the Bar Council of India, we are not permitted to solicit work or advertise. By agreeing to access this website, the user acknowledges the following:

This website is meant only for providing information and does not purport to be exhaustive and updated in relation to the information contained herein. Naik Naik & Company will not be liable for any consequence of any action taken by the user relying on material / information provided on this website. Users are advised to seek independent legal counsel before proceeding to act on any information provided herein.