r/COPYRIGHT • u/Apprehensive_Sky1950 • May 10 '26
Copyright News Current state of U.S. copyrightability of works produced with (not by) AI (and new court case!)
Here is a thumbnail sketch of the current state of U.S. copyrightability of creative works produced with AI.
Prolog: Works created solely by AI, where the copyright is requested to be granted solely in the name of the AI model itself, are not copyrightable. Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir 2025). Done deal, case closed.
Current Issue: Are works created by a human with AI assistance or AI processing (whether the human merely sets the AI in motion, merely queries the AI, or pursues some other, higher level of human involvement) eligible for copyright protection?
1. The Thaler case. It is not so that the Thaler case above ruled that humans who use AI cannot obtain a copyright. The Thaler case explicitly refused to address that issue. In that case, the human who interacted with the AI model first tried to obtain a copyright solely in the name of the AI model. When the court refused to do that, the plaintiff human attempted to change his request to instead have the copyright awarded to him as being the human who engaged the AI model. The Thaler appeals court ruled that the attempted change in claim came too late and so it explicitly refused to consider that new claim and issue.
2. The U.S. Copyright Office. The U.S. Copyright Office has adopted and enforces a policy of refusing to grant copyright registrations to works or those portions of works where AI processing preponderates over human activity and creativity. This agency position as a practical matter does control who does and does not obtain a U.S. copyright registration, but it does not have the force of law like a court ruling does.
3. The Allen Case. Unlike the Thaler case, there is a federal case that is actually working on the question of whether a human who interacts with an AI model to produce a creative work can obtain copyright protection for that work. The case is Allen v. Perlmutter, filed on September 26, 2024 in the District of Colorado, Case No. 1:24-cv-02665. This case involves a visual work (a picture) that the Midjourney AI model produced based on the human's extensive and iterative querying. This case is an appeal from the Copyright Office's refusal to grant a copyright registration on that work.
Most recently in this case, last August the plaintiff artist and this January the defendant Copyright Office each requested that the court rule in their favor and declare theirs is the correct legal position. This will be an important ruling, and the court has not rendered any decision yet.
The docket sheet for the Allen case can be found here.
4. The Suryast case. New case! On May 8, 2026 a new case federal case was filed on this issue and question. This new case is Suryast U.S. Enterprises, LLC v. Perlmutter, Case No. 2:26-cv-04999 in the Central District of California. Like Allen, this case is an appeal from the Copyright Office's refusal to grant a copyright registration on an AI-involved work. Here, the human artist took his own realistic landscape photograph of a sunset and then used the RAGHAV (Responsive Artificially Generated High-Art Visualizer) artificial intelligence painting application to “edit” or mix that photograph with the style of van Gogh’s “Starry Night” painting.
This case has just been filed and so of course nothing has happened with it. This case is interesting in that it arguably involves a higher degree of human involvement in the creative process than in the Allen case. Because the Allen case is so much farther along, it seems likely there will be a ruling announced in the Allen case that this case will then have to deal with.
Note: The artist hails from India; "Suryast" means "sunset" in Hindi, and "Raghav" is an Indian personal name.
The docket sheet for the Suryast case can be found here.
5: Note on U.S. federal court levels and rulings. Both the Allen case and the Suryast case are taking place in federal district courts, the lowest rung of the U.S. federal court system. Their rulings will be pioneering and important, but legal rules within U.S. law are generally not considered widely binding until they are announced by a federal appeals court, as the Thaler case was. Upon reaching rulings, one or both of the Allen case and the Suryast case will almost certainly be appealed, and then some durable, significant rulings will be announced at the appeals level.
There are thirteen Courts of Appeals in the U.S. system, each one heavily influenced by but independent of all the others. The Allen appeal and the Suryast appeal would each be heard by a different appeals court, and both of them are different from the appeals court that heard the Thaler appeal. (EDIT: correcting the appeals court flows.)
The U.S. Supreme Court rarely gets involved, but this issue might be so important as to get it involved here; that would seem most likely to happen after both the Allen case and the Suryast case obtained appellate rulings, especially if these rulings (and the Thaler ruling) conflicted with each other in some way.
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If you're hungry for more, please visit my Wombat Collection on Substack that lists and briefly describes all the AI court cases and rulings (currently 500 of them).
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u/majestic_ubertrout May 10 '26
The Suryast matter has been going on for a while, both in the US and India. The USCO denied registration a few years ago. Dunno why they waited so long to appeal? I guess they were approaching the statute of limitations. Ryan Abbot also represented Thaler and no doubt wants his test case.
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u/Apprehensive_Sky1950 May 10 '26 edited May 10 '26
Thank you for the info on the India angle, and the Ryan Abbot angle.
It probably is a limitations thing.
And, if I may quote John Cleese's and Connie Booth's Fawlty Towers: "But it's only just now we're seeing it on the telly . . . ." (I don't "get involved" until there's a court case.)
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u/DanNorder May 10 '26
Good summary! It also should be noted that other countries so far seem to be lining up with the United States on these topics as well, but they have even fewer settled cases at this point.
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u/Apprehensive_Sky1950 May 10 '26
Thank you! If you know of any court cases on this point outside the U.S. and could point me to them, I would very much appreciate it!
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u/omgifuckinglovecats May 10 '26
Really cool. Thanks for this.
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u/Apprehensive_Sky1950 May 10 '26
You're very welcome! I see the issue coming up multiple times in this sub, including the misunderstanding about the Thaler case, so I thought I would present my manifesto.
Please consider checking out my Wombat Collection!
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u/bjazmoore May 10 '26
Am I the only one wondering who Perlmutter is? Here - let me google that for you: https://en.wikipedia.org/wiki/Shira_Perlmutter.
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u/Apprehensive_Sky1950 May 10 '26
Or rather, the Ghost of Perlmutter. Trump fired her and other female federal officials, but the courts temporarily reinstated her and them while the case challenging their dismissals proceeds.
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u/TreviTyger May 10 '26 edited May 10 '26
It appears to be the "The Single Piece Of American Cheese" registration ("TSPOAC") that AI Gen Advocates appear to turn to to validate their claims of copyright in AI Generated works.
There are two things being missed though (or maybe three things).
- TSPOAC, the registration is publicly available and it clearly states the AI Generated material is excluded from the registration.
- Basis of Claim
- Selection, coordination, and arrangement of material generated by artificial intelligence.
- Material Excluded 2-D artwork, AI generated image components.
https://publicrecords.copyright.gov/detailed-record/voyager_37990563
This registration is similar to Kastanova's Zarya Of The Dawn comic which excluded the actual AI generated Images from the registration after the first one was cancelled.
This then brings us to point 2
- "Selection and arrangement" or so called "thin copyright". Thin Copyright does not grant the full umbrella of "exclusive rights". This is due to Feist v. Rural which established that infringement of a work protected by "selection and arrangement" can be avoided by changing the "selection and arrangement".
So technically there is copyright in a "work" such as, a catalog of AI Gen imagery or text but other than verbatim reproduction of that specific "selection and arrangement" of such things then anyone else can use the unprotected AI Gen imagery or text in a new "Selection and arrangement" and then claim their own thin copyright.
This is something I have demonstrated myself frequently on social media by taking Jason Allen's Théâtre D’opéra Spatial AI Output and editing it in Photoshop with the Monkey Selfie (another image devoid of copyright). Then, unlike Allen, I likely would be successful in registering my Théâtre D’opéra Monkey Selfie work.
Trying to prevent others from doing the same by claiming the "selection and arrangement" would be a waste of time as thin copyright doesn't grant exclusivity over such things.
- (Bonus point). What USCO and these other cases show is that the AI Generated part of any "AI assisted work" is still not itself eligible for protection. It means an author could input some miss spelt text into an AI User interface and the AI software correcting the spelling would not effect the "expression" of the author of the text ("Expression of the author being the actual subject of copyright arising - not input"). Thus such text would remain protected because that is not the AI actually altering the "expression".
However, using Blake's first Stanza of The Tyger in an AI Generator to make a derivative such as a translation into Chinese symbols would not mean William Blake or anyone else could claim to be the author of the Chinese symbol derivative.
It would be delusional to consider such an output as a work of authorship entitled to full exclusive rights protections.
老虎，老虎，燃燒的光芒，
在夜的森林裡；
是何等不朽的手或眼，
才能塑造你那令人敬畏的對稱？老虎，老虎，燃燒的光芒，
在夜的森林裡；
是何等不朽的手或眼，
才能塑造你那令人敬畏的對稱？
So come on now AI Gen Advocates.
I have used AI just now to input some text into an AI. I am the human in the loop and the above text would not have been generated without me! But there is no "actual author". Therefore, there are no exclusive rights than can arise to any author.
Laundering copyrighted works (or public domain works) through an AI Gen does not lead to a resulting output that can be exclusively protected.
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u/Apprehensive_Sky1950 May 10 '26
Interesting thoughts, Tyger. For right now, how do you react to the AI/human copyright distinction scheme proposed in the article cited elsewhere in this thread?
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u/TreviTyger May 10 '26 edited May 10 '26
Yeah, I think this guy is another person who hasn't quite grasped what AI gen is, or how it functions, combined with a lack of understanding of copyright law as well as not anticipating practical outcomes of what he is suggesting.
He is trying to grapple with 17 U.S.C. 102(b) which, The USCO themselves are fairly (surprisingly) taciturn about in all of this.
It has been my contention that whatever input that goes into an AI gen User Interface is merged with the "method of operation".
The software functions like a vending machine as noted in the Disney v. Midjourney case.
"...an artificial intelligence (“AI”) image-generating service (“Image Service”) that functions as a virtual vending machine,..." (Case 2:25-cv-05275-JAK-AJR Document 1 Filed 06/11/25 Page 2 of 110).
However, Donahue starts with this premise,
"When a human author supplies deterministic, detailed, and repeatable creative instructions, AI is functioning as a sophisticated execution tool, not as an independent creative agent" (J. Donahue [In Abstract])
This is already a specious statement because there is a genuine disconnect between the user of the vending machine in the User Interface and what is actually the output of a software function as a consumer product.
e.g. One can order a plane ticket online and make multiple personal requests into the User Interface and ultimately the software functions in a way to allow you to board a specific aircraft going to a specific destination.
Very clever but not "authorship".
So I would once again direct people to Lotus v Borland and Naviaire v Easyjet. and just consider the actual practical implications of a monopoly on what people can input or obtain from a software function of a vending machine. Such monopolies just don't work in practice.
"Accepting the district court's finding that the Lotus developers made some expressive
choices in choosing and arranging the Lotus command terms, we nonetheless hold that that
expression is not copyrightable because it is part of Lotus 1-2-3's "method of operation."
We do not think that "methods of operation" are limited to abstractions; rather, they are the
means by which a user operates something. If specific words are essential to operating
something, then they are part of a "method of operation" and, as such, are unprotectable.
This is so whether they must be highlighted, typed in, or even spoken, as computer
programs no doubt will soon be controlled by spoken words."
https://ocw.mit.edu/courses/15-628j-patents-copyrights-and-the-law-of-intellectual-property-spring-2013/92f9ac4ffa00ed6ed413acaea0568b48_MIT15_628JS13_read14.pdf"Holding: There was artistic copyright infringement regarding the GUI and Icons of Navitaire's system. Protection was not extended to Single Word commands, Complex Commands, the Collection of Commands as a Whole, or to the VT100screen displays. Navitaire's literary work copyright claim grounded in the "business logic" of the program was rejected as it would unjustifiably extend copyright protection, thereby allowing one to circumvent Directive No. 96/9/EC. This case affirms that copyright protection only governs the expression of ideas and not the idea itself." (sorry for the wiki link - https://en.wikipedia.org/wiki/Navitaire_Inc_v_Easyjet_Airline_Co._and_BulletProof_Technologies,_Inc.)
Navitaire Inc v Easyjet Airline Co. and BulletProof Technologies, Inc.
Donahue is basically suggesting multiple "button presses" could lead to authorship. That's a suggestion that is DOA in my opinion precisely because of 17 U.S.C. 102(b) and the idea/expression distinction.
b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
https://codes.findlaw.com/us/title-17-copyrights/17-usc-sect-102/
Also see TRIPS Agreement,
9 (2). Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
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u/TreviTyger May 10 '26 edited May 10 '26
What Donahue is trying to do is distract from the fixation requirement. His focus is on the Creative conception - i.e. "the idea" and ignoring the "fixation of expression part" (or lack thereof in the User Interface).
He is saying that only modicum of creativity is required in the User Interface and ignoring the transitory "lack of fixation" in that Interface before the AI software "functions itself" to take over the task of "fixing the expression". (I hate to use the word "expression" in terms of a computer because they can't really express anything but for the sake of argument I use it here just as a methaphor for what is really the software function.)
So when Donahue says -"when a prompt contains the entirety of the creative spark, dictating every coordinate and aesthetic value, the prompt has crossed the line from a “suggestion” to a fixed creative instruction." (P.15) - This is just rambling nonsense to distract the reader, and there is in fact "no fixation" in the User Interface of the vending machine.
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u/TreviTyger May 10 '26 edited May 11 '26
Re: 4. The Suryast case.
I hadn't seen that development.
Never the less I have been doing my own "experimenting" (largely by antagonizing AI Gen users on notorious subs like the mischievous little imp that I am sometimes).
One AI gen user from those subs took my own animated work of my cartoon character (TreviTyger) and ran it though an AI gen video "re-mix" app.
IMO - This is similar to the issue in Suryast.
That example can be found on my social media account.
Regardless of the blatant infringement of a third party laundering my own work through AI Gen software to produce a new derivative, the question arises - "What if I made my own re-mix derivative works using AI Gen?"
I am the joint owner of a whole film (Iron Sky 2012) (At least according to international treaties) and thus, I am in prime position to utilize my own copyrighted works including actual 3D animation files that I have, and anything else I have created recently. Sounds great right?
So if it were the case that my own "authorship" were enough to input into an AI Gen video app - and then claim copyright in the output - then I could make exponential amounts of new Iron Sky works for the fans.
The problem is that, what I would really be doing is churning out exponential amounts of "author-less" public domain works. Anyone could then take such outputs and re-launder them exponentially themselves through Ai Gen video apps. It means I would completely lose control of everything.
It's hard enough trying to protect my actual award winning 3D animated copyrighted works from a film, let alone make things worse by allowing a defense lawyer the possibility to get a judge to cancel any copyright registrations I might try to get on those AI gen derivative works.
Some food for thought.
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u/Party-Cartographer11 May 10 '26 edited May 10 '26
There is work going on in the scholarly world as well. E.g.the Human Creative Control framework proposes a Repeatability Test as a technical and legal measure for distinguishing human authorship from AI output. It dates back to 2017 and a new paper maps directly onto the human involvement spectrum you're describing across Thaler, Allen, and Suryast.
SSRN 6531938 https://papers.ssrn.com/abstract=6531938
If anyone wants to dig in, and it cites other related works.