Copyright Overview

When a person creates something original and captures it in an appropriate form, copyright protection is permissible. To qualify, the work must possess originality, fixation, and a minimal degree of creativity and be an eligible subject matter.

Originality requires that the work is independently created by a human author and not copied from existing works. Fixation means the work must be captured in a tangible medium—such as written text in the case of a book or a canvas showcasing an original work of art—so it can be perceived, reproduced, or communicated. The work must be minimally creative, possessing ingenuity beyond mere mechanical effort.

Originality requires that the work is independently created by a human author and not copied from existing works. Fixation means the work must be captured in a tangible medium—such as written text in the case of a book or a canvas showcasing an original work of art—so it can be perceived, reproduced, or communicated. The work must also be minimally creative, possessing ingenuity beyond mere mechanical effort.

Human authorship, a cornerstone of copyright law, has come under question with the rise of AI and cases attempting to attribute copyright to non-human creators, such as animals or AI tools. AI-generated works, regardless of the complexity or perceived creativity involved, are not copyrightable unless significant human input is demonstrated. (The U.S. Copyright Office recently released a report stating that AI-assisted works in which human creativity is evident are still protected under copyright law, but the office will continue to reject copyright claims for fully AI-generated works.) The rapid development of AI has led to an increase in legal disputes, raising questions about the boundaries of authorship and copyright. 

Let’s look at a few examples of artistic copyright challenges in our modern times though the mediums of photography, AI-generated artwork, and authorship.

Photography: Can Animals Hold Copyright?

In July 2011, wildlife photographer David Slater found himself at the center of an unexpected legal and ethical debate. While on an expedition to photograph macaques in Indonesia, he set up his camera and, as it turned out, one of the macaques (later named Naruto) managed to press the shutter button, capturing a series of selfies. The images, which gained popularity online, led to an unexpected question. Who owned the copyright to the photos? Since Slater was the one who set up the camera but did not physically take the pictures, the U.S. Copyright Office stated that he could not claim copyright. As a result, the photographs continued circulating freely, with organizations and individuals using the images without any legal restrictions.

In September 2015, People for the Ethical Treatment of Animals (PETA) became involved in the case. PETA filed a request to have Naruto himself assigned copyright for the photos, with the organization managing the licensing and any associated proceeds on his behalf. However, in 2016, a U.S. judge ruled against PETA, citing that under U.S. copyright law, animals, including monkeys, cannot hold copyright. After PETA appealed on behalf of the macaque, the appeals court upheld the lower court’s finding.

According to Judge Carlos Bea, “Our court’s precedent requires us to conclude that the monkey’s claim has standing under Article III of the United States Constitution. Nonetheless, we conclude that this monkey—and all animals, since they are not human—lacks statutory standing under the Copyright Act. … We therefore affirm the judgment of the district court.”

Curious? Read more about Naruto v. Slater.

AI Artwork Denied Copyright

In recent years, there have been several instances in which individuals have submitted artwork generated by AI for copyright protection, only for those submissions to be denied. The primary reason for these rejections is that the artwork does not qualify as having human authorship, which is a requirement for copyright eligibility. Even for cases in which the human works with a tool and changes an image hundreds of times, that product cannot be copyrighted. Bottom line: There isn’t copyright at this time for AI-generated art—and especially if the AI-generated art is augmented for an existing tangible painting.

One famous example is artist Ankit Sahni’s merging of Vincent van Gogh’s Starry Night with an original photograph to create an AI-generated work of art. The U.S. Copyright Office denied copyrightability of this image several times due to insufficient human creativity. This is not the first or last denial of its type, but it is a sign of increasing demands put on the U.S. Copyright Office for proposed works of art with inadequate human authorship.

AI, Art, and IP Challenges

AI and artistic creation have sparked significant intellectual property (IP) challenges in recent years. Major platforms like Midjourney, DALL·E 3, Copilot, Stable Diffusion, Artbreeder, and Adobe Firefly have emerged as pioneers in generative AI technology, fundamentally transforming how digital content is created and distributed.

These platforms harness AI models trained on vast datasets to generate images, text, and other creative outputs. However, their reliance on data-mining practices has raised concerns within the creative community. The incorporation of unlicensed and copyrighted works into training datasets without explicit licensing agreements has brought IP rights to the forefront of the debate—not even touching on the ethical implications.

A point of contention revolves around the definition and scope of derivative works in the context of AI-generated content. When AI creates new content by drawing on existing copyrighted materials, the traditional legal framework for determining derivative status becomes increasingly complex. This is compounded by questions about ownership rights and attribution in AI-generated works.

The legal system is actively wrestling with these unprecedented challenges, as courts seek to establish clear precedents and guidelines. Legal proceedings aim to balance innovation in AI with the protection of IP rights, potentially reshaping copyright law for the digital AI age.

Authorship and IP Protection

Training large language models (LLMs) and other AI tools has posed a major challenge for authors and their IP when their work is used to train these models without permission. To combat this issue, Penguin Random House updated its copyright language to include: “No part of this book may be used or reproduced in any manner for the purpose of training artificial intelligence technologies or systems.” This move is to protect its titles from being used in the development of AI tools.

The trade publisher’s new language is in stark contrast to some academic publishers (e.g., Taylor & Francis, Wiley, and Sage) that have sought partnership with AI tools/providers. With these changes, not only do AI-centric companies need to pay attention to how they train their models, but authors also need to keep abreast of the permissions granted to their IP by their publishers.

As technology advances, questions surrounding authorship, copyright, and protection of creative works become increasingly important. It is essential that updated guidance be put in place to ensure that human creators—whether artists, authors, or other innovators—are properly protected. While AI can be a powerful tool, it shouldn’t disadvantage human creators or exploit their work.