Latest copyright ruling should give brands pause for thought on AI creativity

Last Friday, a US district judge Beryl Howell denied inventor Stephen Thaler’s request to copyright a piece of digital artwork that had been generated "autonomously" – according to court documents – by AI. In a series of applications to the US Copyright Office beginning in 2018, Thaler claimed that the artwork in question, a trippy creation titled “A Recent Entrance to Paradise,” should be legally entitled to copyright protection due to the fact that it had been created entirely by a device of his own making, which he had dubbed the Device for the Autonomous Bootstrapping of Unified Sentience, or DABUS.

The Copyright Office rejected Thaler’s multiple applications on the grounds that the artwork had been created without human input – a prerequisite for copyright protection in the US – prompting him to sue the government agency and its director.

In her ruling, Howell determined “that the Copyright Office acted properly in denying copyright registration for a work created absent any human involvement.” She cited several copyright cases from US legal history to support her decision, including a case in which a selfie taken by a macaque monkey was denied copyright protection (since the photographer was not a human being) and another in which a judge ruled that a holy text, which was claimed to be of divine origin, was ultimately eligible for copyright protection in light of the fact that it was “at least partially the product of human creativity.”

On Thursday, the US Supreme Court declined to consider a challenge from Thaler against the Copyright Office’s decision, according to Reuters.

"We strongly disagree with the District Court’s decision," Thaler’s attorney, Ryan Abbott, told The Drum on Thursday evening. “In our view, the law is clear that copyright law is intended to benefit the American public by promoting the generation and dissemination of new works, regardless of how those works are made. Denying protection for AI-generated works will be a major disincentive to the use and development of AI in the creative economy, and we plan to appeal."

Thaler’s case is the latest in a series of cases that are collectively determining the character of the US legal system’s stance towards generative AI, a rapidly advancing technology that many believe will have serious implications for professionals in marketing. Hollywood is also feeling the impact from the rise of the technology; one of the major concerns for protestors in the ongoing WAG and SAG-AFTRA strikes is the possible use of generative AI within the TV and film industries (to compose scripts, for example). In June, a lawsuit filed on behalf of the comedian and author Sarah Silverman, along with two other authors, claimed that the tech companies OpenAI and Meta had illegally used the plaintiffs’ copyrighted material in order to train large language models.

Many creative professionals whose roles are likely to be impacted by generative AI therefore view the technology with some ambivalence. On the one hand, there’s a widespread acknowledgment among this demographic that it could present new creative opportunities and eliminate a significant amount of human drudgery; on the other hand, it presents some serious legal risks, particularly when it comes to copyright and intellectual property.

A number of prominent brands, seemingly having reached the conclusion that the potential benefits of generative AI outweigh its risks, have eagerly begun to leverage the technology for marketing purposes. Many of those brands are quick to claim that they’re embracing the technology with caution, for example by consulting with internal legal and ethical teams along each step of the production process.

However given the fact that generative AI is still relatively new (ChatGPT was only released last November), brands haven’t had many tangible legal guardrails to constrain their use of the technology. Friday’s ruling against Thaler’s request for copyright protection could mark a change – albeit a slight one – in the laissez-faire attitude with which marketers have until now been allowed to use generative AI.

“The district court decision, along with the prior rulings in this area, make it clear that material generated solely by an AI cannot be patented or copyrighted,” says Robert McFarlane, a patent attorney who’s unassociated with the Thaler case. “However,” McFarlane adds, “that does not end the story for marketing firms and other companies who incorporate AI-generated material into their copy.”

McFarlane points to the recent case of an artist named Kristina Kashtanova who sought copyright protection for a partially AI-generated graphic novel called Zarya of the Dawn. The operative word in that last sentence is “partially”: though Kashtanova had written the text for the book and arranged its overall format herself, she had also included images that were created by the text-to-image AI model Midjourney. In its decision, issued in February, the US Copyright Office stated that “the images in the [graphic novel] that were generated by the Midjourney technology are not the product of human authorship,” and that the work as a whole was thereby only eligible for “limited” protection under copyright.

“In short, it’s clear that material generated solely by AI cannot be protected by copyright,” McFarlane says, while human-made artwork which incorporates some AI-generated content “may be protectable through copyright to the extent shown in the Copyright Office’s treatment of Zarya of the Dawn.”

Shyamkrishna Balganesh, a professor at Columbia Law School who specializes in copyright law, says that the federal judge’s decision to deny Thaler’s request for copyright protection “was fully expected in light of how prior courts have emphasized the human authorship requirement for copyright protection.” He adds that this case stands out for the fact that Thaler was claiming that his AI model had been entirely responsible for the creation of the work in question, “thus denying the existence of any significant human involvement in the creative process."

This will probably be the exception to the rule, in Balganesh's view. “Most cases are unlikely to involve such expansive claims and will instead concede the existence of some human element in the creative process," he says. "In such cases, the challenge will be determining whether the AI system assisted the human creator, thereby rendering the work eligible for protection as a work of human authorship, or if the AI system essentially created the work which would render it ineligible."

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