An artificial intelligence won’t be allowed to copyright a work of art, according to the US Copyright Office.

In 2019, Steven Thaler attempted to formally copyright a digital painting on behalf of an algorithm he’d made, called the Creativity Machine. The artwork, which shows a deep-field image of train tracks winding through a floral forest, with a tree growing between the rails in the distance, was entirely generated by the algorithm after it was exposed to thousands of pictures of landscapes. At the time, the office rejected his request because the created image didn’t include an element of “human authorship.” That standard is included in the requirements for copyright protection to ensure that everything copyrighted is something made deliberately, by a recognized person.

Thayer, who has filed other unsuccessful copyrights on behalf of his algorithms, appealed the decision, and last week a three-person review board revisited his application, but once again rejected it.

In the board’s decision, “the nexus between the human mind and creative expression,” is specified as a required element of copyright. No copyright law specifies that copyright holders must be human, but both the Copyright Office and various courts have always sided against non-human elements in copyright cases. In 1997, for instance, a decision about a book of (allegedly) divine revelations specified that while copyright could be applied to the arrangement and publication of the revelations, the content could not be protected unless a human author took ownership. More recently, another court ruled against an organization trying to sue for copyright infringement on behalf of a monkey painter. “The courts have been consistent in finding that non-human expression is ineligible for copyright protection,” according to Thaler’s review board.

As artificial intelligence is given more and more control over things like manufacturing, content creation, and even design, cases like this will become more and more frequent, and the limits of requiring a “human mind” to be part of copyright will be inevitably tested.

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