Last month, the Review Board of the United States Copyright Office affirmed a 2019 refusal to register the two-dimensional artwork titled “A Recent Entrance to Paradise.” The initial application for registration was filed by Steven Thaler in 2018—but what makes the application particularly interesting is that Thaler did not list himself as the author of the work. Rather, he identified the author as an artificial-intelligence algorithm called “Creativity Machine.” Thaler did not merely assert that the work was generated with the assistance of AI, but that it “‘was autonomously created by a computer algorithm running on a machine.’”
“A Recent Entrance to Paradise” is part of a series of images simulating a near-death experience, in which the algorithm reprocesses pictures to create images and text passages representing a narrative about the afterlife. Thaler explains, “Rather than show a neural net pictures (as a big search engine company has) and allow it to replace items in the scene with weird objects deliberately planted by software engineers . . . these systems are exposed to their surroundings, ‘blindfolded,’ and allowed to choose from the myriad self-generated fantasies it [sic] finds most interesting.”
As the Review Board explained, courts “have repeatedly rejected attempts to extend copyright protection to non-human creations.” In Urantia Found. v. Kristen Maaherra (1997), the Ninth Circuit held that a book supposedly authored by spiritual beings was not copyrightable. In Naruto v. Slater (2018), the same court held that a monkey could not register a copyright in photos that it took with a camera.
Federal agencies have taken a similar stance. A 1978 report by the National Commission on New Technological Uses of Copyrighted Works (“CONTU”) stated that “‘the eligibility of any work for protection by copyright depends . . . upon the presence of at least minimal human creative effort at the time the work is produced.’” Similarly, the Copyright Office has written that “[t]he crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional element of authorship in the work (literary, artistic or musical expression or elements of selection, arrangements, etc.) were actually conceived and executed not by man but by a machine.” In turn, the Compendium of U.S. Copyright Office Practices, which serves as a manual for the Copyright Office, requires human authorship as a prerequisite for registration.
This doesn’t necessarily mean that AI-assisted works are unprotectable—but because Thaler didn’t assert any human contribution in the work, the Board did not need to determine the circumstances under which human involvement in the creation of machine-generated works makes the work protectable.
AI-generated works of visual art (or at least works generated with the assistance of AI) are nothing new. In 2018, an AI-generated painting created by the French art collective Obvious sold for over $430,000 at Christie’s. In 2019, the New York gallery HG Contemporary held an exhibition called “Faceless Portraits Transcending Time,” consisting of works generated using an artificial intelligence named AICAN. When the Obvious painting was up for auction, much of the discourse surrounding the work emphasized the agency of the algorithm in the artistic process. The signature on the painting is not a human name, but a mathematical function; Christie’s even wrote on its website that “[t]his portrait . . . is not the product of a human mind.” For “Faceless Portraits Transcending Time,” on the other hand, the catalog billed the paintings as a collaboration between AICAN and its creator, Dr. Ahmed Elgammal. The way that artists, technologists, galleries, and auction houses have portrayed AI art in the recent past might have been driven by marketing concerns rather than authorship interests—but in the future, parties registering such works with the Copyright Office would do well to emphasize the role humans have played in their creation.
 U.S. Copyright Off., Re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071), at 1 (Feb. 14, 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf.
 Id. at 2.
 Id. at 2-3 (quoting Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019)).
 Adi Robertson, The US Copyright Office Says an AI Can’t Copyright Its Art, The Verge (Feb. 21, 2022), https://www.theverge.com/2022/2/21/22944335/us-copyright-office-reject-ai-generated-art-recent-entrance-to-paradise.
 Steven Thaler, Artificial Intelligence – Visions (Art) of a Dying Synthetic Brain, Urbasm (May 18, 2016), https://www.urbasm.com/2016/05/artificial-intelligence-visions-art-of-a-dying-brain/.
 U.S. Copyright Off., supra note 1, at 4.
 Id. at 4-5.
 Id. at 5.
 Id. (quoting Contu, Final Report at 1 (1978)).
 Id. at 5-6 (quoting U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, at 5 (1966)).
 Id. at 6.
 U.S. Copyright Off., supra note 1, at 3.
 Gabe Cohn, AI Art at Christie’s Sells for $432,500, The New York Times (Oct. 25, 2018), https://www.nytimes.com/2018/10/25/arts/design/ai-art-sold-christies.html.
 Ian Bogost, The AI-Art Gold Rush Is Here, The Atlantic (Mar. 6, 2019), https://www.theatlantic.com/technology/archive/2019/03/ai-created-art-invades-chelsea-gallery-scene/584134/.
 Is Artificial Intelligence Set to Become Art’s Next Medium?, Christie’s (Dec. 12, 2018), https://www.christies.com/features/A-collaboration-between-two-artists-one-human-one-a-machine-9332-1.aspx/
 Bogost, supra note 15.