On December 11, 2023, the Copyright Review Board affirmed the Copyright Office’s decision to reject Ankit Sahni’s application to register the AI-generated work depicted above.  The artwork, entitled “SURYAST” was based on a photograph taken by Sanhi, which Sanhi submitted into the RAGHAV Artificial Intelligence Painting App (“RAGHAV”) and instructed to paint in the style of Vincent van Gogh’s “Starry Night”.  Sanhi submitted to the Copyright Office that he also chose “a variable value determining the amount of style transfer” for the program to apply. In effect, Sanhi was attempting to register the artwork as a derivative of his photograph.

The Copyright Office initially rejected the application on the premise that it lacked the human authorship necessary to support a copyright claim, specifically rejecting Sanhi’s assertions that the work contained some human creative input. Instead, the Copyright Office stated that the “human authorship cannot be distinguished or separated from the final work produced by the computer program.”

Sanhi sought reconsideration, which the Copyright Office rejected again.  The Copyright Office opined that the work was a classic example of a derivative work in that it was a digitalization of a photograph. Because copyright in derivative works is in the transformative elements of the work (rather than the work as a whole), current guidance would require that the derivative work’s transformative elements be created by a human author.  Under this framework, the Office noted that derivative works are analyzed to determine whether the new authorship of the derivative work meets the statutory requirements for protection. Here, the Office found that the RAGHAV app contributed the new elements and, therefore, the derivative authorship was not the result of human creativity or authorship.

On July 10, 2023, Sanhi requested a second reconsideration, this time asserting the human elements of the work and attempting to downplay RAGHAV’s role as that of an “assistive software tool” akin to Adobe photo editing software. The Board also rejected these arguments, but its reasoning is instructive as to how AI-generated work may be found to be protectable in the future.

The opinion heavily cites the relatively recent decision by the U.S. District Court for the District of Columbia in Thaler v. Perlmutter, 2023 WL 5333236, which reasoned that the originator of a copyrightable work must be human to be protectable under the law.[1] For more information on the Thaler decision, please see our prior article at Thaler v. Shira Perlmutter, et al.: The Intersection of Human Control Over Artificial Intelligence and Human Authorship as a Necessary Requirement of Copyright .

The Board also cites to recent guidance promulgated by the Copyright Office. In effect, when analyzing AI-generated material, the Copyright Office must decide whether the human or the computer program is the “creator” of the generated work.

[W]hether the ‘work’ is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.[2]

This determination must be made on a case-by-case basis.  If all of a work’s “traditional elements of authorship” are generated by AI, the work cannot be registered due to a lack of human authorship.  However, if the work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the Office will register the human’s contributions. For this reason, an applicant seeking to protect the human elements of a co-generated work should submit a limitation in the copyright application noting which materials are AI-generated and not protectable.

The decision by the board was very specific to the facts presented. Sanhi made a compelling argument to aggrandize his involvement, captioning it as “conceiving, creating and selecting an original [base] image,” “selection of the style image,” and “selecting a specific variable value determining the amount and manner of style transfer” which “cumulatively resulted in the [Work], which is the direct outcome of [his] creative expression and contribution.” But the Board was unconvinced. Rather, the Board simplified his contributions to three inputs (selecting a photo, providing a style, and providing a variable to the amount of style to which the program would apply), which ultimately did not have any control over where elements were placed or how they would ultimately appear. The Board rebuffed Sanhi’s argument that RAGHAV acted akin to “a camera, digital tablet, or a photo-editing software program,” instead finding that the program (and not Sanhi) made the determinative and creative steps in creating the work. The important takeaway is that Sanhi’s selection of inputs does not render the work copyrightable. Copyright law only protects the particular expression of an idea and not the idea itself.  Thus, the  inputs represent an unprotectable idea or concept, and not the particular expression of that idea, which was created by the AI program.

This opinion stands as another warning to those creating works with generative artificial intelligence. The Copyright Office and Courts continue to rule against the protection of works created by AI. As these opinions are rendered, we hope a line will solidify definitively showing what is protectable. In the meantime, it should be noted that nothing prevents Sanhi from registering his original photograph which he took with a camera. 

The Copyright Review Board’s decision is available at https://copyright.gov/rulings-filings/review-board/docs/SURYAST.pdf.

[1] See id. At *4 (“By its plain text, the 1976 Act . . . requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is ‘yes.’”)

[2] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (Mar. 16, 2023) (quoting U.S. COPYRIGHT OFFICE, SIXTY-EIGHTH ANNUAL REPORT OF THE REGISTER OF COPYRIGHTS FOR THE FISCAL YEAR ENDING JUNE 30, 1965, 5 (1966));