Artificial intelligence and copyright
In the 2020s, the rapid advancement of deep learning-based generative artificial intelligence models raised questions about the copyright status of AI-generated works, and about whether copyright infringement occurs when such are trained or used. This includes text-to-image models such as Stable Diffusion and large language models such as ChatGPT. As of 2023, there were several pending U.S. lawsuits challenging the use of copyrighted data to train AI models, with defendants arguing that this falls under fair use.
Popular deep learning models are trained on mass amounts of media scraped from the Internet, often utilizing copyrighted material. When assembling training data, the sourcing of copyrighted works may infringe on the copyright holder's exclusive right to control reproduction, unless covered by exceptions in relevant copyright laws. Additionally, using a model's outputs might violate copyright, and the model creator could be accused of vicarious liability and held responsible for that copyright infringement.
Copyright status of AI-generated works
Since most legal jurisdictions only grant copyright to original works of authorship by human authors, the definition of originality is central to the copyright status of AI-generated works.United States
The Copyright Clause states:The Congress shall have the power... To promote the Progress of.... useful Arts, by securing for limited Times to Authors... the exclusive Right to their respective Writings...The US Congress and Federal Courts have interpreted this clause as being limited to works "created by a human being", declining to grant copyright to works generated without human intervention. Some legal professionals have suggested that Naruto v. Slater, in which the U.S. 9th Circuit Court of Appeals held that non-humans cannot be copyright holders of artistic works, could be a potential precedent in copyright litigation over works created by generative AI. Some have suggested that certain AI generations might be copyrightable in the U.S. and similar jurisdictions if it can be shown that the human who ran the AI program exercised sufficient originality in selecting the inputs to the AI or editing the AI's output.
Proponents of this view suggest that an AI model may be viewed as merely a tool used by its human operator to express their creative vision. For example, proponents argue that if the standard of originality can be satisfied by an artist clicking the shutter button on a camera, then perhaps artists using generative AI should get similar deference, especially if they go through multiple rounds of revision to refine their prompts to the AI. Other proponents argue that the Copyright Office is not taking a technology neutral approach to the use of AI or algorithmic tools. For other creative expressions the test is effectively whether there is de minimis, or limited human creativity. For works using AI tools, the Copyright Office has made the test a different one i.e. whether there is no more than de minimis technological involvement.
File:Théâtre D’opéra Spatial.png|thumb|Théâtre D'opéra Spatial, 2022, created using Midjourney, prompted by Jason M. Allen
This difference in approach can be seen in the recent decision in respect of a registration claim by Jason Matthew Allen for his work Théâtre D'opéra Spatial created using Midjourney and an upscaling tool. The Copyright Office stated:
The Board finds that the Work contains more than a de minimis amount of content generated by artificial intelligence, and this content must therefore be disclaimed in an application for registration. Because Mr. Allen is unwilling to disclaim the AI-generated material, the Work cannot be registered as submitted.
As AI is increasingly used to generate literature, music, and other forms of art, the U.S. Copyright Office has released new guidance emphasizing whether works, including materials generated by artificial intelligence, exhibit a 'mechanical reproduction' nature or are the 'manifestation of the author's own creative conception'. The U.S. Copyright Office published a Rule in March 2023 on a range of issues related to the use of AI, where they stated:
...because the Office receives roughly half a million applications for registration each year, it sees new trends in registration activity that may require modifying or expanding the information required to be disclosed on an application.
One such recent development is the use of sophisticated artificial intelligence technologies capable of producing expressive material. These technologies "train" on vast quantities of preexisting human-authored works and use inferences from that training to generate new content. Some systems operate in response to a user's textual instruction, called a "prompt."
The resulting output may be textual, visual, or audio, and is determined by the AI based on its design and the material it has been trained on. These technologies, often described as "generative AI," raise questions about whether the material they produce is protected by copyright, whether works consisting of both human-authored and AI-generated material may be registered, and what information should be provided to the Office by applicants seeking to register them.
The Copyright Office further clarified in January 2025 that AI-assisted works where the creative expression of the human remains evident in the work can be copyrighted, which can include creative adaption of prompts for AI generators or usage of AI to assist in the creation process of a work, such as in filmmaking. Works "where the expressive elements are determined by a machine" still remain uncopyrightable. Following this guidance, the Copyright Office registered "A Single Piece of American Cheese", the first visual artwork composed solely of AI generated outputs as a composite work in January 2025. The basis for the copyright involved arguing that human-driven selection, arrangement, and coordination involved in the creative process on a single work constituted sufficient human authorship to merit the copyright.
Both the federal and circuit courts in the District of Columbia have upheld the Copyright Office's refusal to register copyrights for works generated solely by machines, establishing that machine ownership would conflict with heritable property rights as establish by the Copyright Act of 1975.
The U.S. Patent and Trademark Office similarly codified restrictions on the patentability of patents credits solely to AI authors in February 2024, following an August 2023 ruling in the case Thaler v. Perlmutter. In this case, the Patent Office denied grant to patents created by Stephen Thaler's AI program, DABUS due to the lack of a "natural person" on the patents' list of inventors. The U.S. Court of Appeals for the Federal Circuit upheld this decision. In the subsequent rule-making, the USPTO allows for human inventors to incorporate the output of artificial intelligence, as long as this method is appropriately documented in the patent application. However, it may become virtually impossible as when the inner workings and the use of AI in inventive transactions are not adequately understood or are largely unknown.
Representative Adam Schiff proposed the Generative AI Copyright Disclosure Act in April 2024. If passed, the bill would require AI companies to submit copyrighted works to the Register of Copyrights before releasing new generative AI systems. These companies would have to file these documents 30 days before publicly showing their AI tools.
United Kingdom
Other jurisdictions include explicit statutory language related to computer-generated works, including the United Kingdom's Copyright, Designs and Patents Act 1988, which states:In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.
However, the computer generated work law under UK law relates to autonomous creations by computer programs. Individuals using AI tools will usually be the authors of the works assuming they meet the minimum requirements for copyright work. The language used for computer generated work relates, in respect of AI, to the ability of the human programmers to have copyright in the autonomous productions of the AI tools :
In so far as each composite frame is a computer generated work then the arrangements necessary for the creation of the work were undertaken by Mr Jones because he devised the appearance of the various elements of the game and the rules and logic by which each frame is generated and he wrote the relevant computer program. In these circumstances I am satisfied that Mr Jones is the person by whom the arrangements necessary for the creation of the works were undertaken and therefore is deemed to be the author by virtue of s.9
The UK government has consulted on the use of generative tools and AI in respect of intellectual property leading to a proposed specialist Code of Practice: "to provide guidance to support AI firms to access copyrighted work as an input to their models, whilst ensuring there are protections on generated output to support right holders of copyrighted work". In October, 2023, The U.S. Copyright Office published a notice of inquiry and request for comments following its 2023 Registration Guidance.
China
On November 27, 2023, the Beijing Internet Court issued a decision recognizing copyright in AI-generated images in a litigation.As noted by a lawyer and AI art creator, the challenge for intellectual property regulators, legislators and the courts is how to protect human creativity in a technologically neutral fashion whilst considering the risks of automated AI factories. AI tools have the ability to autonomously create a range of material that is potentially subject to copyright or other intellectual property rights.