As technology advances daily, artificial intelligence (AI) keeps redefining the bounds of creativity and intellectual property. From creating music to making portraits and writing poetry, AI has started challenging well-established legal frameworks. At the centre of the legal database lies an important question: Can a machine be considered the same as an author? And if it does not, then who owns the rights to the artworks?
THE RISE OF AI-GENERATED ART
Art generated by AI is not a futuristic concept- it is a part of our present. From complicated algorithms to deep learning and increasing networks, machines can now produce paintings, music, literature, and other creative content that is often similar to or sometimes even surpasses human-made work. Tools like OpenAI’s DALLE, Google’s Deep Dream, and Midjourney have made AI art creation popular, enabling users to generate twisted visual content from simple text prompts.
One visible example is when the picture in Edmond de Belamy was made in 2018 by a Paris-based collective using a generative adversarial network (GAN). The picture at Christie’s auction was for over $432,000, which raised eyebrows across the art and legal communities.[1]. Even though this event highlighted the market value of are created by AI, it also raised questions about authorship and copyright ownership.
COPYRIGHT LAW AND REQUIREMENT OF HUMAN AUTHOR
Copyright laws were traditionally based on creative works generated by human authors. In jurisdictions like the US, UK, and the EU, authorship was given to a natural or a legal entity, such as a business. The fundamental principle of copyrights is to protect “original works of authorship” that arise from human analytical efforts.
THE US POSITION
The United States clearly stated that work made by AI without the component of a human cannot have a copyright. In 2022, the US office rejected an application for registering A Recent Entrance to Paradise, an image wholly created by an AI known as Creativity Machine, which was developed by Dr. Stephen Thaler.[2]. The office reconfirmed that protection of copyright is only limited to works “created by a human being.”
This position was also upheld in the landmark case of Thaler v Perlmutter, where a federal judge stated that the works produced entirely by AI without the component of human input are not available for copyright as it is not the main purpose of copyright protection.[3]. The court explained the requirement of “human authorship for copyright,” citing earlier decisions like Burrow-Giles Lithographic Co. v Sarony, the US Supreme Court that originality must come from the creative faculties of the human mind.[4].
THE UK AND INDIA’S STANCE
The Copyright, Designs and Patents Act 1988 of the UK has a simple approach. Section 9(3), the author is “the person by whom the necessary arrangement of work is undertaken for the creation of work” in the case of work generated by a computer.[5]. In this manner, copyright can be given to the user of AI.
In Nova Productions Ltd v Mazooma Games Ltd, the Court of Appeal in the UK stated that copyright could exist in computer-generated graphics, because it is the author, not the program, who started the artistic work.[6].
Similarly, in Indian copyright law, Section 2(d) of the Copyright Act, 1957, explains that the author of a work which is generated by a computer states, “it’s the author who causes the work to be created.[7]Even though no Indian court has ruled directly about the AI-generated art, analysts argue that current law is sufficient until truly AI becomes common.
THE EU’S POSITION
In the EU, the division of expressing ideas and the requirement of “intellectual creation” play an important role. In the case of Infopaq International A/S v Danske Dagblades Forening, the Court of Justice of the European Union (CJEU) declared that the copyright protection necessitates “the expression of intellectual creation of the author.[8].” This definition was repeated in Painer v Standard Verlags GmbH, highlighting the importance of individual creative decisions for copyright[9].
The European Parliament’s report in 2020 on intellectual property rights for the growth of AI repeated the human-centered nature of authorship, though it did open the door for future legal form in acknowledging the participation of AI in creative processes.[10].
CAN AI BE CONSIDERED AN AUTHOR?
Most of the jurisdictions today say no. AI lacks legal individuality, awareness, and the capacity of intention- all qualities traditionally required for authorship. Furthermore, AI cannot create in the human sense; it processes data, identifies patterns, and gives results based on programmed frameworks.
Still, this raises challenges, especially when AI is becoming more independent and is less reliant on direct human command. If a generative AI is based on millions of pieces of data and produces an original work without specific human command, then can a human who is behind this code or AI be considered the author?
Some legal scholars proposed to treat AI as a mere simple instrument like a paintbrush or camera, in which the person using gives an imaginative contribution and reaches to finished product. [11].
KEY LEGAL QUESTIONS:
- Who Owns the Output?
Who owns the art made by AI, whether the person who programs it, the one who uses it, or the one who owns it?
- How much Human Input can be Enough?
Should there be some approach of creativity and control by a human before it receives copyright?
Can “prompt engineering” be authorship?
- Does AI-generated art need protection at all?
Some believe that refusing to protect AI-generated art can discourage transformation and finance in AI tools.
Others think that if rights are given to AI, then human creativity will not have any value.
WAY TO A MIDDLE PATH SOLUTIONS
As lawmakers, there are few solutions explored for these questions:
- New IP Rights for AI: Similar to the rights given in the EU, some advocates support unique rights that are intended especially for AI-created work.[12].
- Joint Authorship: A place where humans and AI can coexist and balance interests.
- Licensing Frameworks: Address the unauthorized use of copyright material for AI training, and licensing schemes can be developed.
- AI Disclosure Requirements: Disclosing the content when it is assisted by AI is a mandatory condition, which can help with legal clarity.
CONCLUSION
AI-generated art puts pressure on the law to reconsider the basic elements of copyright- ownership, authorship, and inventiveness. Even though our existing law rejects AI as an author, the creative industry put a reliance on AI and adapts legal responses to AI use. In today’s world, the law tries to protect human creativity while it also acknowledges that machines are becoming fast co-creators in our digital world.
As court and legislature continue to fight these issues, one thing is clear: the meeting of art and AI is not theoretical- it is here and it is rewriting the rules of authorship.
Author(s) Name: Kirti Bansal (Karnataka State Law University/ ISBR Law College)
References:
[1] Christie’s ‘Is artificial intelligence set to become art’s next medium?’ (Christie’s, 2018), https://www.christies.com/en/stories/a-collaboration-between-two-artists-one-human-one-a-machine-0cd01f4e232f4279a525a446d60d4cd1 Accessed 22 April 2025
[2] US Copyright Office, ‘Letter Refusing Registration of A Recent Entrance to Paradise’ (14 February 2022), https://www.copyright.gov/rulings-filings/review-board/docs/a-recent-entrance-to-paradise.pdf
Accessed 22 April 2025
[3] Thaler v Perlmutter No 1:22-cv-01564 (DDC 2023)
[4] Burrow-Giles Lithographic Co v Sarony 111 US 53 (1884)
[5] Copyright Designs and Patents Act 1988, s 9(3)
[6] Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219 [2007] FSR 22
[7] Copyright Act 1957 (India) s 2(d)(vi)
[8] Infopaq International A/S v Danske Dagblades Forening (C-5/08) [2009] ECR I-6569
[9] Painer v Standard Verlags GmbH (C-145/10) [2011] ECR I-12533
[10] European Parliament, ‘Intellectual property rights for the development of artificial intelligence technologies’ (2020), https://www.europarl.europa.eu/doceo/document/A-9-2020-0176_EN.html Accessed 22 April 2025
[11] Jane Ginsburg, ‘People Not Algorithms: The Author in the Age of AI’ (2020) 49 Columbia Journal of Law and the Arts 403
[12] Lionel Bently and Brad Sherman, Intellectual Property Law (5th edn, OUP 2022) 334–336.
