Pixels to Property: Copyright in an Era of AI-Generated Art
By: Christina Williams
Introduction
Intellectual property (“IP”) rights are a cornerstone to innovative progress because of the many protections they offer including trademarks, patents, and more. In an era when technology is rapidly advancing, they serve an especially prominent role in securing ownership over non-tangible assets.[1] IP has significantly expanded and developed over time as it now encompasses trade secrets, geographical indications, copyright, and industrial designs.[2] Although IP rights date back to the fourteenth and fifteenth centuries,[3] they gained significant attention after society introduced advanced technology and information became widely accessible. The exploitation, use, or manipulation of another’s work became cheaper, faster, and easier to accomplish thanks to new capabilities such as around-the-clock internet access and artificial intelligence (“AI”).[4] Thus, IP rights, as they adjust to an evolving society, continue to compel an imperfect, yet valuable balance between the cultivation of scientific and artistic progress and protection against unlawful misappropriation.[5]
- AI-Generated Art
AI includes “computer systems that can perform complex tasks normally done by human-reasoning, decision making, creating, etc.”[6] Although AI is nothing new, it considerably caught the public’s attention in the early 2000s.[7] In 2010, deep learning gave AI algorithms the ability to learn through multilayered neural networks.[8] AI evinces its deep learning capabilities in many aspects such as through art generation.[9] In 1968, Vera Molnár spearheaded the concept, as one of the first to experiment with digital art, by using computer systems to create abstract and geometrical pieces.[10] “In 2018, the first AI-generated portrait ‘Edmond de Belamy’ sold for $432,500.”[11] Today, AI-generated art occupies art museums, auctions, galleries, and residences, but it is not limited to well-known artists, skilled creators, or even those who started out using traditional mediums, such as a canvas. Multiple platforms including Artbreeder, RunwayML, DALL-E by OpenAI, Midjourney, and Discord, to name a few, allow anyone with access to AI software to make high-level artwork.[12]
For instance, in 2022, Jason Allen, an amateur artist, won first place in the digital art division at the Colorado State Fair’s annual art competition for the submission of his Midjourney creation.[13] That unsurprisingly sparked an ethical debate on the value of AI-generated art and it continues to influence the nation.[14] The process is indisputably different between human and AI creations as one requires labor, materials, and a medium, while the other involves “simply typing a few words into a text box.”[15] The end-product is the subject of greater dispute – whether AI-generated art is as “real” as hand-sculpted or painted artwork.[16] Some philosophers opine that even though AI art has been disruptive to the moral landscape, that landscape is not fixed, but rather malleable to society’s current interests.[17] Researchers have also discovered that people tend to negatively perceive AI-generated art, even if identical to a human-created piece, signifying some bias against the new era.[18] Regardless of society’s openness or disinterest in AI art, it implicates a variety of areas including legal, ethical, and moral discussion. Specifically, discourse includes how AI-artists should be credited for their work, who the legal author is, and whether simply AI-guided artwork—as opposed to AI-generated artwork— is protected from unauthorized misuse under copyright.
- The Legal Intersection
Put simply, copyright enables artists and authors to temporarily retain rights over their creations.[19] These rights entitle creators to the fruits of their labor and prevent others from reproducing their work without permission, but only before their copyright term expires.[20] Through this dynamic, copyright aims to balance two economic interests: the motivation to create and the access to such creations.[21] To maintain creative motivation, copyright offers a number of incentives and compensation is “one of the biggest.”[22] This dynamic is not stagnant and must alter to reflect society’s new curiosities and trends, often revealed in expressive forms. However, the U.S. Constitution empowers Congress to pass copyright laws.[23] Therefore, the laws update as fast as the Legislature is willing and able to move, regardless of how quickly the nation may be progressing in the realm of IP, including the area of AI-generated art.[24] The primary components of copyright law that remain consistent are “originality” and “fixation.”[25] Some scholars interpret there to be a third requirement of “authorship,” but this was never as complicated to examine, until AI replaced the conception that there would only ever be human authors and artists.[26] In essence, it is not easy to discern whether one contributor deserves sole authorship or it should be joint in AI art cases involving more than one creator – a human, and a machine.[27] The “author” of AI art could theoretically be “(1) the AI’s developer; (2) the AI itself; and[/or] (3) the AI’s end user.”[28] Some professionals argue the end user is the sole author because they labored to some extent.[29] They did so by incorporating their thought processes into the end output via text prompts.[30] Others argue the AI system itself is the rightful author because the AI contributes more to the creation, compared to the less involved end user or developer.[31] Despite these disagreements, the D.C. Circuit, and annotations to 17 U.S.C.S. § 102, predictably convey that it depends.[32]
The U.S. Copyright Office first addresses the issue of authorship, as it is the entity that initially approves or rejects applications.[33] In addition to dealing with copyright registrations and administration, the Office also works in conjunction with Congress and justice departments to ensure the laws’ currency and enforcement.[34] Accordingly, the Office addressed the issue of AI art and made it evident that art created by AI alone “lacks humanity” and cannot fill the position of “author.”[35] The Office has rejected a number of Midjourney pieces, while also allowing art produced by both human and AI efforts because simply using AI does not automatically bar artwork from copyright.[36] Federal courts have seemingly followed the Office’s reasoning and guidance. For example, in 2022, the U.S. Court of Appeals for the Federal Circuit ruled in Thaler v. Vidal that an “inventor” for patent purposes can only be human, not AI.[37] However, the Court did not articulate that inventions produced with AI-assistance are likewise barred.[38] Similarly, the U.S. District Court for the District of Columbia affirmed in Thaler v. Perlmutter that AI-generated art could not receive copyright without any human element imposed.[39] Yet, the opinion did not express that creations produced in part by AI may not be copyrightable.[40] Judge Howell stated that the issue of “how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work” will inevitably require further examination.[41] Thaler’s counsel intends to appeal the decision in Perlmutter, meaning that the issue could be given clarification soon.[42] In short, copyright ensures fair compensation and protection for creators, which incentivizes passion and progress.[43] At the end of the day, a creator should be compensated for his creations, and the outcome just depends on whether a judge or government official may or may not see the prompt box as simply the new paintbrush.
[1] Keegan Caldwell, Unlocking the Value of Intellectual Property: A Strategic Guide for Startups and Tech Companies, Forbes (Jan. 30, 2024, 8:15 AM), https://www.forbes.com/councils/forbesbusinesscouncil/2024/01/30/unlocking-the-value-of-intellectual-property-a-strategic-guide-for-startups-and-tech-companies/.
[2] Intellectual Property, Stan. Encyclopedia of Phil., https://plato.stanford.edu/entries/intellectual-property/ (last updated Aug. 18, 2022); What is Intellectual Property?, WIPO (2020), https://www.wipo.int/en/web/about-ip.
[3] Oxford Univ. Press, Intellectual Property Rights, Development, and Catch Up: An International Comparative Study 7 (Hiroyuki Odagiri et al. eds., 2010).
[4] U.S. Congress, Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information 97 (1986).
[5] Mark A. Lemley, Property, Intellectual Property, and Free Riding, 83 Tex. L. Rev. 1031, 1065–67 (2005).
[6] Kelley May, What is Artificial Intelligence?, NASA, https://www.nasa.gov/what-is-artificial-intelligence/ (last updated May 13, 2024).
[7] Wolfgang Ertel, Introduction to Artificial Intelligence 13 (3d ed. 2025).
[8] Id.; AI-Generated Art, Interaction Design Found., https://www.interaction-design.org/literature/topics/ai-generated-art (last visited Apr. 8, 2025); Anne-Sofie Maertena & Derya Soydaner, From Paintbrush to Pixel: A Review of Deep Neural Networks in AI-Generated Art, Elsevier 1 (July 18, 2024), https://arxiv.org/abs/2302.10913.
[9] AI-Generated Art, supra note 8.
[10] What is AI art and How is it Made?, Adobe, https://www.adobe.com/products/firefly/discover/what-is-ai-art.html (last visited Apr. 8, 2025).
[11] Maertena & Soydaner, supra note 8, at 1.
[12] AI-Generated Art, supra note 8; Liz Mineo, If it Wasn’t Created by a Human Artist, is it Still Art?, Harv. Gazette (Aug. 15, 2023), https://news.harvard.edu/gazette/story/2023/08/is-art-generated-by-artificial-intelligence-real-art/.
[13] Kevin Roose, An A.I.-Generated Picture Won an Art Prize. Artists Aren’t Happy, N.Y. Times, Sept. 2, 2022, at 3.
[14] Id. at 3–4.
[15] Id. at 1.
[16] Mineo, supra note 12.
[17] Claudia Baxter, AI Art: The End of Creativity or the Start of a New Movement?, BBC (Oct. 21, 2024), https://www.bbc.com/future/article/20241018-ai-art-the-end-of-creativity-or-a-new-movement.
[18] Martin Ragot, Nicolas Martin, & Salomé Cojean, AI-Generated vs. Human Artworks. A Perception Bias Towards Artificial Intelligence?, CHI 2020 (Apr. 25, 2020), https://dl.acm.org/doi/abs/10.1145/3334480.3382892.
[19] Copyrights, 17 U.S.C.S. §§ 101–1511.
[20] The Lifecycle of Copyright, Copyright.gov, https://www.copyright.gov/history/copyright-exhibit/lifecycle/ (last visited Apr. 9, 2025).
[21] William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Legal Stud. 325, 326 (1989).
[22] Wenqing Zhao, AI Art, Machine Authorship, and Copyright Laws, 12 Am. U. Intell. Prop. Brief 1, 6 (2020).
[23] The Lifecycle of Copyright, supra note 20.
[24] Zachary Bozard, What Does It Mean to Create Art? Intellectual Property Rights for Artificial Intelligence Generated Artworks, 20 S.C. J. Int’l L. & Bus. 83, 84 (2023).
[25] Id. at 85; 17 U.S.C.S. § 102(a); Jessica L. Gillotte, Copyright Infringement in AI-Generated Artworks, 53 U.C. Davis L. Rev. 2655, 2666 (2020).
[26] Mackenzie Caldwell, What is an “Author”?—Copyright Authorship of AI Art Through a Philosophical Lens, 61 Hous. L. Rev. 411, 422 (2023).
[27] Bozard, supra note 24, at 84.
[28] Caldwell, supra note 26, at 432.
[29] Id. at 436.
[30] Id.
[31] William Tan, Defining Authorship for the Copyright of AI-Generated Music, Harv. Undergraduate L. Rev. (2023), https://hulr.org/fall-2024/defining-authorship-for-the-copyright-of-ai-generated-music.
[32] Thaler v. Perlmutter, 687 F. Supp. 3d 140, 149–50 (D.D.C. 2023); 17 U.S.C.S. § 102.
[33] Services of the Copyright Office, Copyright.gov, https://www.copyright.gov/help/faq/faq-services.html (last visited Apr. 10, 2025).
[34] Zhao, supra note 22, at 9–10.
[35] Caldwell, supra note 26, at 411.
[36] Nimal Farhan Aripurath, Beyond Canvas: Unravelling the Legal Tapestry of AI-Infused Artistic Creation, 7 Int’l J.L. Mgmt. & Human. 1517, 1521 (2024); Dan Mangan, Art Created Autonomously by AI Cannot be Copyrighted, Federal Appeals Court Rules, CNBC, https://www.cnbc.com/2025/03/19/ai-art-cannot-be-copyrighted-appeals-court-rules.html (last updated Mar. 19, 2025, 12:33 PM).
[37] Thaler v. Vidal, 43 F.4th 1207, 1213 (Fed. Cir. 2022); Blake Brittain, US Appeals Court Rejects Copyrights for AI-Generated Art Lacking ‘Human’ Creator, Reuters (Mar. 18, 2025, 2:05 PM), https://www.reuters.com/world/us/us-appeals-court-rejects-copyrights-ai-generated-art-lacking-human-creator-2025-03-18/.
[38] Vidal, 43 F.4th at 1213.
[39] Thaler v. Perlmutter, 687 F. Supp. 3d 140, 146, 149–50 (D.D.C. 2023); Brittain, supra note 37.
[40] Perlmutter, 687 F. Supp. 3d at 149; Debra Cassens Weiss, Art Generated Solely by AI Can’t Be Copyrighted, Federal Appeals Court Says, A.B.A. J. (Mar. 19, 2025, 11:05 AM), https://www.abajournal.com/news/article/art-generated-solely-by-ai-cant-be-copyrighted-federal-appeals-court-says.
[41] Perlmutter, 687 F. Supp. 3d at 149.
[42] Mangan, supra note 36.
[43] Aripurath, supra note 36, at 1524.
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