May 13, 2025

How Much Human Required: The Copyright Edition

By Emily Poler
We’re well into the first round of litigation over copyright infringement, with cases like the one brought by the New York Times against OpenAI (which I first wrote about here) now well into discovery. Meanwhile, a recent report from the U.S. Copyright office indicates it has, to date, registered more than 1,000 works created with the assistance of artificial intelligence. Obviously, this is just the beginning. Which leads me to, what’s the next front for disputes involving AI and copyright law?

To me, the clear answer is this: How much human authorship is needed for a work created with AI to be copyrightable, and what implications does that have for the defense of AI against copyright infringement claims? And how will courts sort out what is protectable (human created) from what’s not protectable (AI created)?

First, some background. 

Dr. Stephen Thaler is a computer scientist who developed an AI he dubbed the “Creativity Machine” (not the most creative name, if you ask me). According to Thaler, his Machine autonomously generated this artwork titled “A Recent Entrance to Paradise.” 

Thaler submitted a copyright registration to the U.S. Copyright Office for the image, listing himself as the owner and the Machine as the sole author. (He subsequently changed tactics in an attempt to claim that the artwork was created under the works made for hire provision of the Copyright Act, claiming that the image was a work for hire because he employed the AI that created the artwork.)

The Copyright Office denied the application, saying that only works authored by humans are eligible for copyright protection. 

Thaler then filed suit in the U.S. District Court for the District of Columbia against the Copyright Office and its director, Shira Perlmutter. That court sided with the Copyright Office, finding that “human authorship is an essential part of a valid copyright claim.” Most recently, the Court of Appeals for the District of Columbia affirmed the District Court’s finding. The Court of Appeals based its conclusion on a number of provisions in the Copyright Act that reference human attributes — an author’s “nationality or domicile,” surviving spouses and heirs, signature requirements, and the fact that the duration of a copyright is measured with reference to an author’s lifespan — when discussing who is an author. The Court wrote: “Machines do not have property, traditional human lifespans, family members, domiciles, nationalities… or signatures.” 

The Court also rejected Thaler’s claims that the artwork was a work for hire, pointing to the requirement in the Copyright Act that all works be created in the first instance by a human being. 

This brings me back to where I think we’re going to see copyright litigation. As noted above, the Copyright Office has registered a lot of works created by some combination of human and artificial intelligence. So, what is enough human authorship to make something created in part by AI copyrightable? Where is the line drawn? It’s pretty intriguing. Here’s a crude example: if you prompt an AI with, “create a fantasy landscape with unicorns and dragons,” is the image generated copyrightable? If you give it a detailed list of 47 specific prompts, will the Copyright Office approve? Somewhere in between? How can you calculate the percentage of a creative work attributable to human intervention, and the percentage that is computer processing?

And then there’s the flip side, which I think is even more interesting. If an AI creation isn’t copyrightable, what happens when someone (something?) sues for copyright infringement based on a work that was partially AI generated? Will courts have to ignore the AI-created portion of the work and how do you even figure out what that is? Enterprising defendants (and their counsel) will come up with some interesting arguments, enterprising plaintiffs (and their counsel) will push back, and courts will have to sort it all out.

And that starts to sound, however tentatively, like we’re getting into Terminator territory. So with that, all I can sign off with is, “hasta la vista.”