Judge Rules GenAI Content Does Not Have Copyright Protection

Art created by artificial intelligence does not get copyright protection, a federal judge upheld a decision late last week. The ruling sets a precedent for content creators, agency execs and others increasingly using these tools, and could impact the amount of human involvement in roles that AI is expected to envelop. Judge Beryl A. Howell of the U.S. District Court for the District of Columbia agreed with the U.S. Copyright Office’s decision to deny copyright protection for artwork created by AI that does not entail any human involvement. The New York Times Updates Terms of Service to Prevent AI Scraping Its Content This ruling stands as the first legal guardrail in the nation for AI-generated artwork coming in the wake of the generative AI boom. With the rise of several tools, including OpenAI’s ChatGPT, Midjourney, and Stable Diffusion, this ruling will act as a template for future legal battles surrounding IP when applied to AI. “This decision sets the first precedent that explicitly states that copyright law is fundamentally tied to human creativity,” said Violet Sullivan, vp of client engagement for Redpoint Cybersecurity and a privacy law professor at Baylor Law School. Why should marketers care? For marketers who are increasingly investing in generative AI, especially for content creation purposes such as images for a campaign, this marks an example of what can and cannot be copyrighted under the law. Human creativity for such campaigns remains critical to protecting marketers from running into legal issues. This could potentially safeguard such jobs that could otherwise be lost to AI. “You can come up with these creative campaign ideas using generative AI,” said Sullivan. “But unless it has some kind of human authorship, or at least a defense to explain where the human creativity was used, it's not going to get approved for copyright protection.” How did we get here? Stephen Thaler, CEO of neural network firm Imagination Engines, has been at the forefront of the effort to establish copyright protections for AI-generated content, according to The Hollywood Reporter. Thaler attempted multiple times to copyright a piece of visual content, “A Recent Entrance to Paradise,” created using Creativity Machine—a computer system owned by Thaler. Stephen Thaler’s AI-generated visual cannot be copyrighted. However, after being denied protection each time, Thaler sued the Copyright Office in June 2022. The Copyright Office rejected the application on the grounds that “the nexus between the human mind and creative expression” is a crucial element of protection. In the latest ruling by Howell, copyright law “protects only works of human creation,” the judge wrote. "In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No," Howell noted. How much human intervention? Friday’s ruling does not settle some of the broader questions determining the copyright protection qualification. One key question, according to Sullivan, is what extent of human intervention is required to register for copyright. Neither does the ruling clarify what happens when images that are already protected under copyright are used for creating content, as seen in the case where Getty Images sued the creators of Stable Diffusion for using its content. “Can new AI-created work [without human involvement] apply for copyright? No. That's the only question we've solved,” said Sullivan. Implications for the Hollywood strikes This could impact WAG/SAG-AFTRA union members, including writers and actors, who have been involved in a strike for more than 100 days over fears that studios could use generative AI to create scripts or act in movies, making certain jobs obsolete. "If you are a producer of a TV show and use AI, you might not get final copyright protection for your work," said Sullivan. Amazon’s Generative AI Investment Is Bigger Than You Think Meanwhile, the ruling could help artists who would otherwise end up paying huge legal fees to defend their copyright cases in court. “This ruling gives consistency to the way that these cases be handled in the future,” said Sullivan. That said, the ruling could stifle AI firms from claiming any copyright protection over their content pieces, as seen in Thaler’s case. Either way, this may lead to an evolution of copyright laws that enable the recognition of emerging tech, like generative AI, as creative entities eligible for copyright safeguards, Sullivan added.