Everything Made By an AI Is In the Public Domain

The US Copyright Office offers creative workers a powerful labor protective.

11 min readAug 20

Norman Rockwell’s ‘self portrait.’ All the Rockwell faces have been replaced with HAL 9000 from Kubrick’s ‘2001: A Space Odyssey.’ His signature has been modified with a series of rotations and extra symbols. He has ten fingers on his one visible hand. Image: Cryteria (modified) https://commons.wikimedia.org/wiki/File:HAL9000.svg CC BY 3.0 https://creativecommons.org/licenses/by/3.0/deed.en — Cryteria/CC BY 3.0, modified

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Last week, a US federal judge handed America’s creative workers a huge labor win: Judge Beryl A Howell of the DC Circuit Court upheld a US Copyright Office ruling that works created by “AIs” are not eligible for copyright protection.

This is huge.

Some background: under US law — and under a mountain of international treaties, from the Berne Convention to the TRIPS —copyright is automatically granted to creative works of human authorship “at the moment of fixation in some tangible medium.”

That is: as soon as a human being makes something creative, and records it in some medium (a hard-drive, magnetic tape, paper, film, canvas, etc), that creative thing is immediately copyrighted (the duration of that copyright varies, both by territory and by whether the creator was working on their own or for a corporation).

That means that for a work to be eligible for copyright in the USA, it must satisfy three criteria:

It must be creative. Copyright does not apply to non-creative works (say, a phone book listing everyone in a town in alphabetical order), even if the work required a lot of labor. Copyright does not protect effort, it protects creativity. You can spend your whole life making a phone book and get no copyright, but the haiku you toss off in ten seconds while drunk gets copyright’s full protection.
It must be tangible. Copyright only applies to creative works that are “fixed in a tangible medium.” A dance isn’t copyrightable, but a video of someone dancing is, as is a written description of the dance in choreographers’ notation. A singer can’t copyright the act of singing, but they can copyright…