Application to register an AI-created work in the USA is denied, reiterating the human authorship requirement for copyright protection.
Last 18th March 2025, the USA Court of Appeals for the District of Columbia Circuit upheld the refusal of the application to the Copyright Office for protection of the artistic material A Recent Entrance to Paradise. The applicant, Dr. Stephen Thaler, indicated at the tame of the application that the material had been totally created with the AI tool Creativity Machine, requesting the recognition as author for Creativity Machine and him as the rightsholder according to the work-for-hire doctrine. However, the Copyright Office determined that, insofar the material had not been created by a human being, it could not be considered as a work according to the copyright legislation.
While it is true that, in contrast with Spanish legislation, the Copyright Act of 1976 does not expressly define the “author” as a human being or natural person, there are other provisions in the norm which content allows that interpretation (among others, the linking of the duration of the rights to the [human] life of the author, the transmission mortis causa to relatives, or the need for a signature in order to make an assignment).
Nonetheless, the Court states that the requirement of human authorship does not preclude the protection of works created with AI (AI-assisted works). The only requirement is that the author of the work must be a human being, but this does not hinder the possibility of the author using the assistance of an AI to create this work. However, it is key to analyse how the AI was used by the author in order to determine whether a work is copyrightable, being essential that there is a sufficient human contribution.
Thus, it is possible to find recent cases where the US Copyright Office has granted the registration of AI-assisted works. For example, on 30 January 2025, registration was granted for the visual work ‘A Single Piece of American Cheese’, created with Invoke AI and the ‘inpainting’ technique (a technique that uses AI for the restoration and digital editing of images), which constitutes an important precedent for the protection of works created with AI.
In cases of artworks where humans make use of AI tools, it is crucial to prove that in the selection, coordination and arrangement of AI-generated materials there was a human creative effort on the part of the author that is present in the final work. In the case of ‘A Single Piece of American Cheese’, the Office considered that the decision making emulated that of a collage, where individual elements are brought together and structured into a new, cohesive whole.
The US Copyright Office has also clarified that the mere fact of providing prompts to an AI tool is not sufficient to consider that human creative intervention has taken place (decisions of 5 September 2023, ‘Théâtre D’opéra Spatial’, and of 21 February 2023, ‘Zarya of the Dawn’).
This being the case, the conclusions drawn by the USA Courts and Copyright Office can be easily extrapolated to the Spanish legal system. On the one hand, regarding the requirement that authorship must correspond to a human being, the issue is a peaceful one in view of Article 5 of our Intellectual Property Law and the inclination of the Court of Justice of the European Union towards a subjective originality criteria. And, on the other hand, with regard to AI-assisted works, there is a certain consensus on the need for human input in the creative process to be significant, as can be seen from the opinion offered by the EU Member States in the Policy Questionnaire on the relationship between generative artificial intelligence and copyright and related rights, published by the Council of the European Union on 20 December 2024.
Jorge Díaz
Lawyer
