Courts: AI Images Can't Be Copyrighted

Sorry.

Speaking of copyright, as I was in the previous post, Ken Klein at PetaPixel reports that the U.S. Court of Appeals for the District of Columbia Circuit has unanimously affirmed a ruling denying copyright protection for solely AI-generated images. At issue is the "human authorship" requirement adopted by the Copyright Office in 1973 and subsequently enshrined in the Copyright Act passed by Congress in 1976.

Alicia Calzada, Deputy General Counsel of the National Press Photographers Association (NPPA), told PetaPixel, "Judge Millett explained it best that, 'machines are tools, not authors.' Interpretations of the Copyright Act would be nonsensical if the 'author' could be a computer or other machine. Machines do not have children, they do not die, they do not have nationalities or hold property. All of these concepts referenced in copyright law would have absurd results if authorship was granted to a computer program, and courts are simply not allowed to re-interpret statutes or ignore portions of a statute."

The ruling implicitly distinguishes between a dumb machine used as a recording device (i.e., a camera and subsequent tools used to manipulate a camera image under the guidance and control of a human author) and a smart machine such as generative AI, because the lawsuit being ruled on asserted copyright for an entirely AI-created image.

Here's the article...but read the comments too, especially the one from Eckcooties. By the way, the ChatGTP prompt for the illustration above was "picture of a surprised machine."

I agree with my friend Steve R., who commented, "sometimes the courts get it right."

Mike

Original contents copyright 2025 by Michael C. Johnston and/or the bylined author. All Rights Reserved. Links in this post may be to our affiliates; sales through affiliate links may benefit this site. As an Amazon Associate I earn from qualifying purchases. (To see all the comments, click on the "Comments" link below or on the title of this post.)

Featured Comments from:

John Camp: "A camera is a tool and all the crucial 'creative' decisions are made by the human using it. The same is true of a computer used as a word processor: I push the 'r' key and the computer registers an 'r' but not because the computer wanted to, or decided to. In both situations, the person is the creator, the machines used are simply tools.

"In the case of AI, a human enters prompts, but using identical prompts doesn't guarantee the AI will produce an identical image or story each time those same prompts are entered. Those crucial decisions about image or story will depend on what the AI has ingested as its resource library, and that may change from minute to minute, out of the control of anyone. So the human is prompting, and the AI is creating. (It's like a kid prompting his mother, 'Tell me a story.' The mother does. Is the kid then the story-teller? No.)

"The other key aspect of this is the copyright legislation which specifically intended copyright to apply to humans (and not machines, and not animals.) So the court got it right. If the Congress wants copyright to apply to machines, it could pass legislation saying so, but that would open a can of worms of unimaginable dimension."

Comments

[Zyni]

I think that you, along with many, mistake America for a nation ruled by laws: once it may have been, today it is no longer. This judgement is simply theatre: you will get in trouble if you use images controlled by rich and powerful men; the rich and powerful men will not get in trouble when they use the images that you thought, mistakenly, that you controlled.

Power and greed and corruptible seed seem to be all that there is, as one of your poets said.

[David Dyer-Bennet]

Pretty clearly that's the right solution for here and now; though the human prompt put in at the start does give some connection to human agency.

As a lifelong science fiction reader, it's clearly not right that the decision focuses on "human". It's obvious to me that sentient intelligent aliens should have all the same rights under law as humans. (Robert A. Heinlein's story "Jerry Was a Man" is one of the earlier works on the topic that I remember, about a court case to establish the rights of an uplifted ape. David Brin has a series of books featuring an interstellar union of species that all practice uplift (and basically enslave their uplifted cousins; except for humans, who do not). But these things are not yet present on the ground and I suppose it's a bit much to expect lawmakers and judges to think that far ahead.

[David Raboin]

Here's a thought experiment. What if I wrote a graphic novel and I used AI for the illustrations? I create the characters, the plot, the dialog, etc. Then I instructed AI exactly how I want the characters to look and I gave AI detailed instructions for the layout of each individual cell in the graphic novel. Doesn't it feel like that type of artwork should be protected by copyright?

For the past year or two I've been following the photographer Timothy Archibald's ongoing work "The AI Camera Club". In this series, Archibald has created a fictional small town and his AI camera club documents the town much like the famous FSA photographers of the 1930s. It's a thought provoking artwork. It comments on (maybe lampoons) our reverence for historic photographers and the asthetics of 1930s photography as well as showing how AI can be used by humans to create unique images that can transmit new ideas about our world and common memories. Archibald's AI work is so unique that it feels like he should have copyright protection.

[Robert Roaldi]

I wonder if there will be any appeals.

Be interesting to see what would happen when someone inevitably suggests replacing judges with AI. Or politicians.

[Dennis]

agree with Steve R, the AI intrusion is bad enough as it is without 'copyright' protection. Consider the copyrights the developer have violated!

[Daniel]

Machines are not people - yet US Courts have ruled Corporations are.
Crazy world, isn't it?

[John Krumm]

Hmmm, I asked Chat GTP to create the perfect camera that meets all human needs. It did! Patent office here I come.

"Here’s an AI-generated image of a "perfect" camera—designed with everything humans might want:

Compact yet powerful – A sleek, ergonomic design that’s easy to hold.

Advanced AI & Autofocus – Instantly recognizes scenes, adjusts settings, and ensures perfect shots.

Modular & Customizable – Swap lenses, grips, and viewfinders to suit any style of photography.

Hybrid Shooting – Seamlessly switches between high-resolution photography and 8K video.

Instant Connectivity – Wireless transfer, cloud backup, and direct sharing to social media.

Long Battery Life – Efficient energy use for all-day shooting.

Holographic Viewfinder – A futuristic feature for composing shots in 3D space."

[George]

My college staff account gets me full access to Adobe's "firefly" AI image generator.

We've used it extensively ever since, for copyright-free instant images for use in class learning materials without having to worry about permissions or attribution etc.

I note the output is somewhat comedic at times. This particular AI engine won't be stealing our jobs anytime soon.

[Maris Rusis]

Given that AI images cannot be copyrighted as individual artistic works I wonder if a personally selected and arranged group of AI images can be copyrighted on the notion that the art in question becomes one of CURATION rather than CREATION.

[I think so; again, read the comment by "Eckcooties" at the PP link. --Mike]

[Arg]

I could argue that a photograph treated with AI tools like DxO PRIME also meets the definition used by the judge. After all, every pixel of the original photo has been removed and in its place the software has substituted a pixel that it guesses viewers might like more.

The original photo is copyrighted, but the DxO PRIME'd image is not, because the original photo was just a prompt for this entirely AI-generated image.

[I would agree. But whether the courts will agree is a different story. --Mike]

[Gary Merken]

Your post refers to "The Federal Appeals Court." There is not just one federal court of appeals. There are more than a dozen.

The opinion to which you referred was issued by the U.S. Court of Appeals for the District of Columbia Circuit. There are also U.S. Courts of Appeals for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, and 11th Circuits. Plus the Federal Circuit, which hears only case being appealed from the U.S. Court of Federal Claims.

Appellate courts are not bound to follow one another. The same issue being presented to another circuit could result in a different, even directly contradictory result.

[Thanks Gary. Fixed now, thanks to you. --Mike]