So far the verdict has been nearly unanimous: if you want to collect royalties from music written by AI in the United States, you better keep quiet about it.

In keeping with a precedent set when a monkey named Naruto took a selfie (no, really), the Review Board of the US Copyright Office once again refused to assign copyright to an artwork designed by AI, thwarting efforts by a frequent tester of the boundaries of AI and the law, Dr. Stephen Thaler.

The Verge, which has written multiple times on this issue (and is careful to republish the AI-created artwork with the credit attributed to “Stephen Thaler and/or Creativity Machine,” the name of Thaler’s AI algorithm) first noted the decision filed in late February by the Review Board of the US Copyright Office.

The decision affirmed the Copyright Office’s 2019 ruling against Thaler and his Creativity Machine, deciding that an AI-created artwork called “A Recent Entrance to Paradise” did not consist of the necessary “human authorship” to be assigned copyright.

The case of Naruto, a crested macaques monkey that took a selfie using a photographer’s camera, has become a bizarre precedent for establishing the status of art made by non-humans.

In 2014, the Copyright Office held that photographs that had been taken by a crested macaques monkey named Naruto could not be protected by copyright. In that case, Naruto was the one who pushed the shutter button on a photographer’s camera, taking a selfie (though the photographer, David Slater, did work in setting up the camera).

The case of Naruto has become a strange and some would say absurd milestone in the path to establishing US law for AI-generated works, with the Copyright Office indicating that “only works created by a human can be copyrighted under United States law, which excludes photographs and artwork created by animals or by machines without human intervention.”

“The courts have been consistent in finding that non-human expression is ineligible for copyright protection,” the Copyright Office wrote. “Thaler must either provide evidence that the work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. He has done neither.”

Music merely assisted by AI (such as that made by a tediously large and ever-growing contingent of amateur ambient producers generating thousands of hours of audio wallpaper for Spotify every month) likely qualifies for having “human authorship.”

Thaler and his attorney, Ryan Abbott, have launched a series of “test cases” for AI-created artworks targeting the “human authorship” requirement, from artwork to patents for AI-created inventions. Abbott told that the Copyright Review Board’s decision will make deception inevitable.

“It’s going to be a real issue when someone has AI that makes a song that is genuinely commercially valuable—that’s playing on the radio, that people want to listen to,” Abbott noted. “Then there’s a question: Do I just put my name on this so I can get streaming royalties? Or do I admit the machine made it, in which case I can’t stop anyone from using it however they want?”


It should be noted that AI-assisted music, such as that made by a tediously large and ever-growing contingent of amateur ambient producers generating thousands of hours of audio wallpaper for Spotify every month, likely qualifies for having “human authorship” in most circumstances, unless it was written by AI alone, without human intervention. Thaler’s case, as The Verge noted, “emphasized that humans weren’t meaningfully involved because his goal was to prove that machine-created works could receive protection, not simply to stop people from infringing on the picture.” Thaler in this case was listed as the claimant alongside a transfer statement by virtue of having “ownership of the machine.” Thaler sought to register the work of art generated by his AI “as a work-for-hire.”

Judges in other countries including South Africa and Australia have opened the door on patent protection for AI-generated inventions.

Thaler’s case (or that he’s brought on behalf of his AI, rather) will be appealed to federal court. The Review Board’s decision can be found here.