Many governments worldwide are currently seeking to keep pace with the impact – on their economies, infrastructures and industries – of AI developments and innovations. In the visual art ecosystem, two challenging issues are being faced: whether AI-generated art is currently protected by copyright law; and, if not, whether it should be.
Christie’s New York is currently running a pioneering online auction of AI-generated art, ‘Augmented Intelligence’. Over 20 lots are being offered, with bids invited from 20 February to 5 March 2025, including a ‘12-ft-tall robot by Reben that will make an oil painting in Christie’s Rockefeller Center space during the auction. With each new online bid the work receives, the robot will paint a new canvas section, guided by Reben’s AI model. Bids start at $100, and the robot will fill out the canvas as the price increases.’
In the same vein, AI robot Ai-Da, generated the painting A.I. God. Portrait of Alan Turing (2024), which sold at Sotheby’s New York in November 2024 for $1m. It portrays Alan Turing, the celebrated 1940’s pioneer of AI and computer science. In a speech to the House of Lords Communications and Digital Committee in 2022, the robot said ‘I do not have subjective experiences … I am dependent on computer programmes … although I’m not alive, I can still create art’.
The ‘human mind’ copyright doctrine is the longstanding fundamental basis of most copyright regimes worldwide, and is why copyright laws of so many countries have not yet made provision giving copyright protection to works wholly generated by computer technology. Scholarly discourse on this subject was published in 2017 under the playful title Do Androids Dream of Electric Copyright? This allusion to the title of Philip K Dick’s 1968 dystopian novel, on which the 1982 film Blade Runner was based, refers to Dick’s central theme: artificial entities, which are ‘replicants’ of humans, may have no built-in awareness that they are machines, yet their actions may manifest human traits – making it difficult or impossible for people to distinguish a human from a replicant.
It is axiomatic that every country has the absolute right to make its own laws that operate within its own sovereign territory. For such domestic laws to be enforceable abroad, countries need to sign reciprocal enforcement treaties with other nations operating matching laws. In this way, treaty nations agree to enact laws to enforce in their territories legal rights of citizens of other treaty nations, and vice versa. Currently, no consensus has been reached by countries worldwide that copyright should be accorded to wholly computer-generated work. Rather, there is a patchwork of copyright legislative approaches to the issue, which means that worldwide enforcement of copyright in such works is problematic – hence the flurry of government activity grappling with this and other AI issues this year.
In the US, for example, the US Supreme Court ruled as early as 1884 that copyright protection at that time excluded works created by ‘non-humans’ (when dismissing a copyright lawsuit claiming that cameras, not photographers, were image-makers). EU copyright law adopts the same approach, albeit couched in different language: the expression of an ‘author’s own intellectual creation reflecting his [sic] personality’ is a fundamental requirement for a work’s copyright protection. In Spain ‘the author of a work is the natural person who creates it’. In Germany ‘copyright protects the author in his [sic] intellectual and personal relationships with the work’. In Australia, courts have authoritatively declared that works are not covered by copyright if they ‘lack human authorship’.
In Korea ‘copyright registration for an AI output is impossible if a human did not contribute creatively to the expressive form … if a human had performed additional work on the AI output, such as modifying, or making additions or deletions, only the part that had undergone such change is copyrightable.’ Japan adopts a similar approach. The People’s Republic of China’s Internet Court ruled in 2023 that, although human authorship was required for copyright protection, images created using generative AI could be protected under China’s copyright law on a case-by-case basis.
In January this year, the US Copyright Office published an extensive report on ‘Copyrightability’ of AI. The report results from consultations over the past two years with numerous stakeholders and consideration of over 10,000 comments representing a broad range of perspectives, including those from all 50 states and 67 other countries. Its recommendations are likely to have worldwide influence. The report addresses the policy implications of providing additional legal protection to AI-generated material and evaluates the arguments for and against legislative change. Based on an analysis of copyright law and policy, informed by the many thoughtful comments in response to its consultation, the Office makes the following conclusions and recommendations.
Copyright protects the original expression in a work created by a human author, even if the work also includes AI-generated material. Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements. Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analysed on a case-by-case basis. Based on the functioning of current generally available technology, prompts do not alone provide sufficient control. Human authors are entitled to copyright in their works of authorship that are perceptible in AI-generated outputs, as well as the creative selection, coordination, or arrangement of material in the outputs, or creative modifications of the outputs. The case has not been made for additional copyright or sui generis [stand-alone] protection for AI-generated content.
The UK’s 1988 copyright legislation, which predates by three decades the development of generative AI technologies, currently includes a provision that gives protection to works ‘generated by computer in circumstances such that there is no human author of the work’; and designates the author as a ‘person by whom the arrangements necessary for the creation of the work are undertaken.’
UK’s Intellectual Property Office (UKIPO) has recently invited public comment on whether to change this law, through its Copyright and AI Consultation Report (Artlaw AM483). UKIPO’s current position is that it is ‘unclear whether removing [protection for computer-generated works] would either promote or discourage innovation and the use of AI for the public good.’; but does not rule out future changes – perhaps to comply with the fundamental human originality copyright requirement for computer-generated artistic works.
© Henry Lydiate 2025