United States Copyright Office Denies Copyright to Photograph Stylized Using AI
Summary
On December 11, the Review Board of the United States Copyright Office affirmed its refusal to register artwork created by using AI to create an image from a photograph in the style of Vincent van Gogh’s The Starry Night in response to a second request for reconsideration. The work was created by providing an AI with an image taken by the user and an image of van Gogh’s painting, then selecting a value for the strength of style the user wanted transferred. The input images and output are depicted below. The Board’s response to the first request for reconsideration, decided last year, determined that the work, a digital adaptation of a photograph, was a “classic example of derivative authorship.” Analyzing the output as a derivative work, the Board concluded that the new aspects of the work did “not contain enough original human authorship” because they were generated by AI. In this ruling, the Board did not change its position that the work is a derivative of the original photo. The Board focused on authorship and described user’s selection of a single variable “as the kind of de minimis authorship not protected by copyright,” likening it to digital edits— which are ineligible for protection unless they add substantial new authorship. Ultimately, the Board determined that the user did not exert sufficient creative control over the output to meet the human authorship requirement and the user’s choices “only constitute an unprotectable idea” rather than an expression of that idea.
