Have you had a chance to use any generative AI? It is continually growing in ability and one such area of extreme growth is related to generation of art. The image below was created using Midjourney v5.1 model that was released in May 2023. The prompt for the image below was “crazy invention in a laboratory”.
The question is – could you as the prompt writer obtain copyright protection for this image? No.
According to the U.S. District Court for the District of Columbia, human authorship is an essential part of a valid copyright claim and the amazing art from Midjourney is not eligible for copyright. On August 18, 2023 in Thaler v. Perlmutter, the court found that work created by a computer algorithm running on a machine lacked human authorship necessary to support a copyright claim.
So, if there is no human involvement in the creation of the work, the work is not eligible for copyright.
However, there are some interesting notes in the opinion: “Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might be best used to incentivize creative works involving AI, and more.”
So what is enough human input to qualify the user of AI as an author? Perhaps we will eventually find out.
Contact John Bednarz if you have questions.
