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AI can’t copyright art: US Copyright Office

The US Copyright Office rejected a request to allow an artificial intelligence (AI) algorithm to copyright its art since it “lacked the required human authorship necessary to sustain a claim in copyright”.

Steven Thaler submitted the request on behalf of the AI algorithm that created the image, called Creativity Machine. The piece in question created by the AI was named ‘A recent entrance to Paradise’. The image is a part of a series created by the AI that Thaler says simulates a perceived afterlife with images and a fictional narrative.

Steven Thaler initially submitted the request in November 2018, which was rejected in August 2019. Thaler appealed for reconsideration in September 2019, which was rejected in March 2020. Thaler requested reconsideration a second time in May 2020, and last week the review board rejected the request again.

Since the algorithm does it all with almost no human intervention — apart from its creation — the Copyright office’s board doesn’t seem pleased.

A recent entrance to Paradise by Steven Thaler’s AI, Creativity Machine

According to the review board, “Courts interpreting the Copyright Act, including the Supreme Court, have uniformly limited copyright protection to creations of human authors. The Court has continued to articulate the nexus between the human mind and creative expression as a prerequisite for copyright protection.”

Thaler’s second argument was that AI could be an author under the law as work made for hire doctrine would suggest that non-human entities such as companies can hold the copyright. The review board countered that such work for hires requires the two parties to enter into a legal agreement, and the AI can’t enter into binding legal contracts.

As things stand right now, the only way Steven Thaler could have copyrighted the AI’s work is by arguing it was a product of his creativity executed by the AI. While the importance of human expression and authorship stands in the courts at the moment, as AI is increasingly being used in different design software, things could change a bit in the coming years.

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