USA Trends and Developments Contributed by: Steven Schindler, Katherine Wilson-Milne, Thomas Kline, Eden Burgess and Aaron Haines, Schindler Cohen & Hochman LLP
In art and cultural heritage law, significant areas of development include AI and copyright, the activities of the Antiquities Trafficking Unit (ATU) of the Manhattan District Attorney’s Office, and Nazi-looted art claims. Artists and creators continue to use AI, presenting the US Copyright Registration Office (the “Office”) and the courts with novel copyright questions. The ATU has expanded its prosecutions outside the State of New York and beyond antiquities and found success in at least one of those prosecutions. Lastly, the approach - es to Nazi-looted art claims continue to evolve, par - ticularly with the “Best Practices” policy statement by the US State Department last year. This article reviews As AI’s use continues to grow, so too have the issues regarding AI and copyrights. The Office issued a notice of inquiry regarding AI in August 2023 and received more than 10,000 replies. The Office then published a report in three parts offering commentary and guidance. Copyright registration Human authorship of a work is essential to copyright registration, including works involving AI. This has been a bedrock principle of copyright law for decades, and the Office has made it clear that this will continue to be so for works involving AI. these key areas. AI and Copyright In Part 2 of its Report on Copyright and Artificial Intel - ligence (the “Report”), the Office described a work involving AI as falling on a spectrum. At one end are works in which AI assisted an author in creating a work; these are likely eligible for copyright registration. In contrast, works created wholly by AI are probably not eligible for copyright registration. Works that fall in between raise difficult issues. To assist in the analysis, the Report addressed four categories of AI involvement, consistent with recent registration decisions. 1. AI assistance A work is copyrightable if AI is used solely to assist the human author. AI may not be used “as a stand-in for human creativity” (Report, Part 2 at 12).
2. Prompting The output from entering a prompt into an AI program is not copyrightable because it does not provide the human author with sufficient control in creating the output. This approach follows the Office’s 2018 decision in which Jason Thaler created an AI program that then created the two-dimensional work “A Recent Entrance to Paradise” (US Copyright Office Review Board, Deci - sion Affirming Denial of Registration (Correspondence ID: 1-3ZPC6C3; SR # 1-7100387071) (14 February 2022)). The Office denied Thaler’s registration request, explaining that the work lacked human authorship. Thaler appealed the decision to the DC District Court, where he met a similar result. The judge found that the lack of human authorship was fatal because “[it] is a bedrock requirement of copyright” (Mem Op, Thaler v Perlmutter, No 22-cv-1564 (DC District Court 18 August 2023)). Thaler appealed to the US Court of Appeals for the DC Circuit which affirmed, explain - ing that “the Copyright Act requires all work to be authored in the first instance by a human being” (Mem Op, Thaler v Perlmutter, No 23-5233 (DC Circuit 18 March 2025)). 3. Human-authored expressive inputs When a human author uses a work they created as a prompt, their input remains copyrightable, but aspects of the output attributable to AI are not copyrightable. “[W]here a human inputs their own copyrightable work and that work is perceptible in the output, they will be the author of at least that portion of the output” (Report, Part 2 at 24). This outcome is reminiscent of a 2023 decision in which Ankit Sahni applied to register his work “SURYAST”. Sahni took a photograph, input it into an AI program, and directed the program to modify the photograph in the style of Van Gogh’s “Starry Night”. The Office determined that Sahni could apply to register his photograph for copyright protection, but that the final work as modified by AI was not eligible for copyright protection because the AI contributions were indis - tinguishable from his original photograph (US Copy - right Office Review Board, Decision Affirming Denial of Registration (Correspondence ID: 1-5PR2XKJ; SR #1-11016599571) (11 December 2023))..
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