No Copyright for AI Art: What Happens Next?

March 21, 2025

The United States Court of Appeals for the D.C. Circuit has recently affirmed a significant ruling that art generated solely by artificial intelligence (AI) cannot be copyrighted under current U.S. law. This decision in the case of Thaler v. Perlmutter underscores the long-standing requirement of human authorship as a bedrock principle of copyright protection. While this ruling clarifies the status of purely AI-generated works, it is crucial to distinguish them from creations where AI is used as a tool by human artists; the latter may still qualify for copyright if sufficient human creativity and control are demonstrated.

The legal landscape surrounding AI-generated content varies across the globe, with jurisdictions like the UK, EU, and Australia exhibiting differing approaches and ongoing debates. As AI technology continues to advance rapidly, this ruling highlights the critical need for ongoing discussions and potential adaptations of copyright law to address the novel challenges presented by autonomously created works. The consistent rejection of copyright for purely AI-generated art in the US across multiple court levels emphasizes the enduring significance of human authorship within the framework of copyright law. This stance reflects a deeply ingrained legal principle that has thus far resisted the challenges posed by technological advancements in creative fields.

Introduction: The Evolving Landscape of AI and Copyright:

Generative artificial intelligence has ushered in a new era for creative industries, providing powerful tools that enable the creation of art, music, literature, and various other forms of content with unprecedented ease and speed. This technological leap has raised fundamental questions for intellectual property law, particularly in the realm of copyright. At the heart of the debate lies the concept of authorship: Who can be considered the author of a work generated by AI, and can such works be afforded the protection traditionally granted to human creators? The recent ruling by the U.S. Court of Appeals for the D.C. Circuit in Thaler v. Perlmutter stands as a pivotal moment in addressing these complex challenges within the United States legal framework.

It is essential to recall the existing legal principle that copyright protection has historically been contingent upon the presence of a human creator who contributes original expression to the work. The rapid advancement of AI technology has presented a unique situation where creative outputs can be generated without direct human intervention, a scenario that existing copyright law was not initially designed to address. This temporal disparity between technological progress and legal evolution necessitates ongoing judicial interpretation and consideration of potential legislative updates to ensure the legal framework remains relevant and effective.

The Landmark US Court Ruling:

The case at the center of this discussion is formally known as Stephen Thaler v. Shira Perlmutter, Register of Copyrights. The ruling was delivered by the U.S. Court of Appeals for the D.C. Circuit, placing it within the jurisdiction of federal law in the District of Columbia Circuit. The unanimous decision by the three-judge panel was issued on March 18, 2025. News articles reporting on the ruling were published on March 19, 2025, reflecting the immediate public dissemination of this significant legal development. The events leading to this ruling began in November 2018 when Stephen Thaler, an AI researcher based in Missouri, submitted a copyright application to the U.S. Copyright Office for a piece of visual art titled "A Recent Entrance to Paradise". In his application, Thaler asserted that the artwork was created autonomously by his AI system, which he named "Creativity Machine".

Notably, Thaler explicitly listed the AI as the sole author of the work, identifying himself only as the owner. The U.S. Copyright Office initially rejected Thaler's application in 2022, citing the fundamental requirement that copyright law protects only works of human authorship. Thaler subsequently challenged this decision, leading to a legal battle that saw a federal district court in Washington uphold the Copyright Office's rejection in 2023. This initial legal setback paved the way for Thaler's appeal to the D.C. Circuit, culminating in the recent affirmation of the lower court's ruling. Thaler's explicit designation of the AI as the sole author, rather than claiming authorship through his use of AI as a tool, appears to have been a critical factor in the court's decision. This highlights the significant role of the authorial claim in copyright applications, especially when involving AI-generated content.

Reasoning of the Court:

The central argument presented by the U.S. Court of Appeals for the D.C. Circuit in its ruling was that the Copyright Act of 1976 explicitly and implicitly requires human authorship as an indispensable condition for copyright protection. The court firmly agreed with the U.S. Copyright Office's position that only works created by human authors are eligible for copyright. Writing for the unanimous three-judge panel, U.S. Circuit Judge Patricia Millett articulated that the very structure and provisions of the Copyright Act are predicated on the understanding that an author is a human being. In a clear and concise statement, Judge Millett asserted that "machines are tools, not authors". The court further elaborated on this point by reasoning that fundamental concepts embedded within copyright law, such as the rights related to having children, inheritance upon death, nationality, and the ability to hold property, would become illogical and absurd if authorship were to be extended to computer programs or other machines. The ruling emphasized the enduring legal tradition, spanning centuries, which firmly establishes human authorship as a "bedrock requirement of copyright".

The court also drew a parallel to the well-known "monkey selfie" case, where a photograph taken by a monkey was deemed ineligible for copyright because a non-human entity cannot be considered an author under the law. Moreover, the court explicitly stated that any potential policy decisions regarding the expansion of copyright protection to encompass AI-generated works are matters that should be addressed by the legislative branch, specifically the U.S. Congress, rather than through judicial reinterpretation of existing statutes. Thaler had argued that denying copyright to AI-generated art could hinder investment and innovation within the burgeoning field of AI-driven creativity. However, this argument did not persuade the court, which remained steadfast in its interpretation of the current copyright law. The court's reasoning reflects a strict adherence to the existing statutory language and the historical interpretation of the term "author," indicating a textualist approach to legal interpretation. This stance underscores the necessity of legislative action if copyright law is to be adapted to accommodate the unique challenges and opportunities presented by new technological advancements in creative endeavors.

Implications for Artists Using AI:

Understanding the implications of the Thaler v. Perlmutter ruling for artists who incorporate AI into their work requires a critical distinction between art that is solely generated by AI and art created by human artists who utilize AI as a tool within their creative process. The recent court ruling specifically addresses the former scenario, where the AI is presented as the autonomous creator of the artwork without significant human input in the expressive elements of the final piece. It is important to note that the U.S. Copyright Office has, in fact, allowed the registration of copyright for works where human authors have employed artificial intelligence in their creation, provided that sufficient human creativity and control are evident in the ultimate output. The Copyright Office has offered guidance on the level of human input deemed necessary, emphasizing that simply providing prompts to a generative AI system is unlikely to meet the threshold for copyright protection. This is because, in many current AI systems, the AI, rather than the human user, is largely responsible for determining the specific expressive elements of the generated content.

The ruling carries potential implications for artists who heavily rely on generative AI without making substantial human modifications or curating the AI's output. In such cases, their artwork may not be eligible for copyright protection, potentially leaving it open for others to use, reproduce, and distribute without attribution or compensation. Conversely, this legal precedent might encourage artists to adopt a more active and involved approach when using AI in their creative endeavors. By focusing on AI as a tool to enhance their own artistic vision and by maintaining a significant degree of human authorship through creative selection, arrangement, modification, and refinement of AI-generated elements, artists may still be able to secure copyright protection for their work. Furthermore, the lack of copyright protection for purely AI-generated art could lead to a reassessment of the economic viability and market value of such works. Investors and stakeholders might need to reconsider their strategies in the AI art market, potentially shifting focus towards projects that involve more substantial human creative contributions. This ruling thus creates a clear impetus for artists to engage with AI tools in a manner that demonstrably showcases their own creative input and control over the final artwork, potentially fostering new and innovative forms of human-AI collaboration in the realm of artistic creation.

Perspectives of Legal Experts and Intellectual Property Lawyers:

The recent court ruling on the copyrightability of AI-generated art has elicited a range of reactions and perspectives from legal experts and intellectual property lawyers. Ryan Abbott, the attorney representing Stephen Thaler, voiced strong disagreement with the court's decision and indicated his client's intention to pursue further appeals. In contrast, the U.S. Copyright Office issued a statement affirming its belief that the court reached the correct conclusion, thereby reinforcing its long-held stance on the necessity of human authorship for copyright protection. Alicia Calzada, the Deputy General Counsel of the National Press Photographers Association (NPPA), publicly concurred with the ruling, stating that it aligns with established copyright law principles spanning several decades and is consistent with prior decisions from other courts on similar issues. Calzada emphasized the widely accepted analogy that "machines are tools, not authors," and she further argued that granting authorship to computer programs would lead to nonsensical interpretations of various aspects of copyright law, particularly concerning concepts like familial relationships, mortality, nationality, and the capacity to own property. While Alexander Okuliar, co-chair of Morrison Foerster's Global Antitrust Law Practice Group, did not directly comment on the Thaler case, his observation about the significance of legal developments within the rapidly evolving generative AI industry underscores the broader importance of this ruling within the current legal landscape.

Generally, legal experts hold diverse opinions on the wider implications of this decision. Some affirm the ruling as a necessary reinforcement of existing legal principles centered on human creativity, while others advocate for a more nuanced adaptation of copyright laws to effectively address the increasing role of AI in creative processes. Many legal scholars generally agree with the U.S. Copyright Office's policy and the principle upheld by the courts, asserting that the fundamental justification for copyright protection lies in its promotion of human authorial creative expression. Consequently, they argue that if a work lacks a human author, it would be unjust to restrict public access and use through copyright. It is also important to note the ongoing debate within the legal community regarding the specific level of human input required for copyright protection in situations where AI is used as an assistive tool. The Thaler ruling, while clarifying the status of purely AI-generated works, did not definitively resolve this more nuanced question of human-AI collaboration in artistic creation. While a consensus exists on the fundamental requirement of human authorship, the legal community is actively engaged in discussions and debates concerning the precise application of this principle in the context of increasingly sophisticated AI technologies. This suggests that future legal challenges and the need for further clarifications through judicial or legislative action are highly probable.

Copyright Laws in Other Jurisdictions: A Comparative Overview:

Copyright laws concerning AI-generated art differ significantly across various jurisdictions, reflecting diverse legal traditions and policy considerations.

In the United Kingdom, Section 178 of the Copyright Designs and Patents Act (CDPA) of 1988 provides a unique approach by offering copyright protection for "computer-generated works" in situations where there is no identifiable human author. In such cases, the legislation designates the "author" as the person "by whom the arrangements necessary for the creation of the work are undertaken". This definition could potentially encompass the programmer who designed the AI system or the user who provided the prompts. However, the copyright term for computer-generated works in the UK is reduced to 50 years from the end of the year in which the work was made, and moral rights, which typically protect the personal connection between an author and their work, do not apply. The UK is currently engaged in ongoing debates and government consultations regarding the broader implications of AI on copyright law, including issues related to the training of AI models and the ownership of AI-generated outputs. There remains uncertainty within UK law regarding the specific level of human skill and judgment required to constitute the "arrangements necessary for creation," as well as the precise distinction between works that are considered purely computer-generated versus those where a human has significantly assisted in the creative process.

In the European Union, copyright law generally requires a human author for a work to be eligible for protection. Copyright applies to works that are considered "the author's own intellectual creation," meaning the work reflects the author's free and creative choices and bears their personal stamp. A recent ruling by a Czech court provides the first European judicial decision in an AI and copyright dispute, determining that AI-generated works cannot be protected under Czech copyright law because AI is not considered a "natural person" and lacks the unique creative capacity inherent to humans. However, the Czech court did suggest that if a plaintiff could provide sufficient evidence of detailed and original instructions given to the AI, demonstrating a high degree of human creativity in guiding the AI's output, copyright protection might potentially be granted to the human prompter. The EU's AI Act, enacted in 2024, focuses primarily on regulating AI systems based on risk but also includes provisions that reflect concerns about copyright in the datasets used for training AI and potential issues related to copyright in the outputs.

Australia's copyright law also mandates a human author who has contributed "independent intellectual effort" for a work to receive copyright protection. Consequently, works that are solely generated by AI without significant human input are generally not considered eligible for copyright in Australia. A notable challenge in Australia is the absence of specific copyright exceptions for data mining or the use of copyrighted works for machine learning, which raises questions about the legality of using copyrighted material to train AI models. Australia is actively engaged in discussions surrounding these issues, as evidenced by the establishment of a Copyright and AI Reference Group, tasked with examining and providing guidance on the intersection of these two rapidly evolving fields.

The UK's specific legal provision for computer-generated works stands out as a potentially more accommodating approach to AI-generated content compared to the stricter human authorship requirements prevalent in the US, EU, and Australia. However, the inherent ambiguities within the UK law concerning the necessary level of human input and the interpretation of "arrangements necessary for creation" underscore the complexities involved in adapting existing legal frameworks to the unique characteristics of AI-generated content.

The Future of Copyright Law in the Age of AI:

The rapid proliferation of generative AI has ignited significant debates and presented multifaceted challenges for the future of copyright law. One of the primary areas of contention revolves around the copyright implications of training AI models on vast datasets that often include copyrighted works. A central point of debate is whether this training process constitutes copyright infringement or if it falls under the umbrella of fair use or similar exceptions. Many artists and creators express concerns that their work is being used to train AI systems that can then replicate their styles, potentially devaluing their original creations. Conversely, arguments are made that AI training serves the public interest and should be considered fair use, drawing parallels to the indexing of books for search engines. The European Union, for instance, permits text and data mining for research purposes under certain conditions.

Another significant challenge lies in the difficulty of proving copyright infringement when AI generates outputs that bear resemblance to existing copyrighted works. Determining who should be held liable in such situations—the AI developers, the entities that trained the model, or the users who prompted the infringing output—remains a complex legal question. The traditional concept of authorship, a cornerstone of copyright law, is also being fundamentally challenged by the increasing capabilities of AI to generate creative works autonomously. The argument that algorithms, unlike human creators, do not require economic incentives to produce creative works further complicates this issue. This has led to discussions about the potential need for new legal frameworks or sui generis forms of protection specifically designed for AI-generated content. However, the U.S. Copyright Office has currently taken the stance that existing copyright law is adequate to address the questions surrounding the copyrightability of AI-generated works.

Beyond the legal technicalities, ethical considerations surrounding AI-generated content are also gaining prominence. Issues such as transparency regarding the use of copyrighted material in training data, the potential for bias in AI outputs, and the broader impact on human artists and creators are subjects of ongoing discussion and concern. Some propose a shift in focus within intellectual property frameworks, moving towards principles of "equity and creativity" rather than solely emphasizing economic incentives for large media corporations. Ultimately, addressing these complex issues will likely require the active involvement of legislative bodies and a concerted effort towards international cooperation to develop consistent and effective legal solutions in this rapidly evolving technological landscape. The advent of generative AI is prompting a fundamental re-evaluation of the core tenets of copyright law. The traditional model, primarily designed to incentivize human creators through economic rights, faces a significant challenge from technologies capable of autonomous creative generation. This necessitates a broader societal dialogue concerning the value and legal status of AI-generated content within our existing legal and cultural frameworks.

Conclusion:

The recent ruling in Thaler v. Perlmutter firmly establishes that, within the United States legal system, art generated solely by artificial intelligence is not currently eligible for copyright protection. This decision rests on the fundamental principle of human authorship, a long-standing requirement under the Copyright Act of 1976. The court's reasoning underscores the belief that copyright law, as it currently stands, is designed to protect the fruits of human creativity and that machines, however sophisticated, are merely tools and not authors in the legal sense. While this ruling clarifies the status of purely AI-generated works, it is crucial to recognize the distinction between such creations and those where AI is employed as a tool by human artists. In the latter cases, copyright protection may still be attainable if sufficient human creativity and control are demonstrably involved in the final output. The legal landscape surrounding AI-generated content is far from uniform across the globe, with jurisdictions like the UK, EU, and Australia grappling with similar questions but sometimes adopting different approaches. The ongoing evolution of AI technology ensures that the intersection of AI and copyright law will remain a dynamic and complex area, likely to witness continued legal and policy developments in the years to come.

Recommendations:

Based on the analysis of the recent court ruling and the broader context of AI and copyright law, the following recommendations are offered:

For Artists Using AI:
- Embrace AI as a powerful tool to augment and enhance your inherent creative abilities, rather than solely relying on it for content generation.
- Actively engage in the creative process by maintaining a substantial level of human input and control, including the careful selection, arrangement, significant modification, and thoughtful curation of AI-generated elements to ensure your personal artistic vision is realized.
- Maintain meticulous records documenting your specific creative contributions and the prompts you utilized, as this documentation can be crucial in demonstrating your authorship.
- Recognize that works generated purely by AI, without significant human creative input, may not be protected by copyright and could therefore be freely used by others.
- Explore the possibility of licensing your AI-assisted artwork to retain control over its use and distribution, even if full copyright protection is uncertain.

For Legal Professionals:
- Continuously update your knowledge regarding the evolving case law and legislative developments pertaining to AI and copyright, both within the United States and in relevant international jurisdictions.
- Provide comprehensive guidance to clients on the intricacies of copyright law as it applies to works created with the assistance of AI, emphasizing the paramount importance of demonstrating human authorship in the creative process.
- Assist clients in drafting clear and legally sound contractual agreements for collaborations involving AI in creative projects, addressing intellectual property ownership and usage rights.
- Actively monitor discussions and proposals for potential reforms to copyright law aimed at addressing the unique challenges posed by artificial intelligence in the creative sector.

For Policymakers:
- Carefully consider the broader implications of the current legal framework for fostering innovation and supporting creativity in an era increasingly shaped by artificial intelligence.
- Initiate and engage in thoughtful discussions regarding potential legislative reforms that could provide greater clarity on the copyrightability of AI-generated works and effectively address the complex issues surrounding AI training and copyright infringement.
- Explore opportunities for international collaboration and harmonization of copyright laws in the context of AI to establish more consistent and predictable legal standards across different jurisdictions.

The current lack of clear and universally accepted legal frameworks for AI-generated content creates a degree of uncertainty for creators, businesses, and legal professionals operating in this rapidly evolving field. This underscores the pressing need for ongoing dialogue, careful consideration, and potential international cooperation to develop more standardized and effective approaches to the intersection of artificial intelligence and intellectual property law.