With the evolution of technology such as ChatGPT, the creativity of Artificial Intelligence (AI) has been in the spotlight recently. There is no doubt that AI has generated efficiencies across various sectors, but AI does not come without its challenges, and ethical and regulatory considerations such as copyright concerns are the source of much debate.

In a recent case brought in the US, the question before the court was whether a piece of artwork created by a generative AI could be registered for copyright protection. The US Supreme Court considered the principles of 'originality, 'authorship' and 'ownership'.

Thaler v USCO - Can AI-generated artwork be copyrighted?

The judgment confirmed that AI-generated work cannot be copyrighted.

This case concerned a scientist who made an application to register his AI computer system as the author of a computer-generated artwork.

Mr Thaler first made an application to the US Copyright Office in 2018. The application was rejected on the basis that it lacked "human authorship". In 2019, he made a request for his application to be reconsidered. The US Copyright Office affirmed their earlier rejection by maintaining that human authorship is a necessary characteristic for an artwork to be afforded copyright protection.

Thaler sued the US Copyright Office, claiming the requirement for human authorship was not in accordance with the law. The case called before Judge Beryl A Howell at the US District Court of Columbia in August 2023.

The judge acknowledged the growing influence of AI generated artwork, but held that "human authorship is a bedrock requirement of copyright". She ruled against Thaler and reiterated the principle that "human input' was an essential part of any copyright claim.

Thaler v Comptroller-General of Patents, Designs and Trademarks - the English position.

Interestingly, Thaler has made various applications for the recognition of intellectual property rights for similar pieces of work in several jurisdictions, including England and Wales. Thaler made an application to register the same AI as an 'inventor' with the UK Comptroller-General of Patents, Designs and Trademarks. These applications were dismissed on the basis that Section 13(2)(a) Patents Act 1977 requires a 'person' to be an inventor.

After failing in the High Court, Thaler appealed the decision, but was again unsuccessful in the Court of Appeal. His appeal to the UK Supreme Court was heard in March this year, and we anticipate the judgement by the end of 2023.

What do these decisions mean for Scotland?

Intellectual property laws vary in different jurisdictions, but rights may be enforceable in other countries through international agreements. Both the US and UK are members of the Berne Convention for the Protection of Literary and Artistic Works, and therefore any work attracting copyright protection in either country will generally be protected in the other.

In the Scotland as well as in England and Wales, copyright law is governed by The Copyright Designs and Patents Act 1988. An automatic copyright arises when you create an original piece of work, including literary, dramatic, musical and artistic works. Original non-literary works including software, databases and web content are also capable of attracting copyright protection.

The UK takes a similar approach to the US in respect of copyright protection. To receive copyright protection, one must show that the product is an original piece of work which was created as result of the author's original skill, labour and judgment. The author must also satisfy the criteria for authorship; under current legislation, only humans can register a patent or qualify for copyright protection.

But, what about artwork created by AI?

Collaboration of AI and Humans

As technology develops, AI has become an increasingly contentious topic. Although AI can generate a wide variety of artworks, by definition it lacks the fundamental element of human creativity necessary to receive copyright protection.

If the law does not recognise an AI machine as an author and therefore the legal owner of the intellectual property rights, the question remains as to who has ownership of these rights. Questions also arise as to the level of human input required to receive recognition for AI-generated artwork.

Each case will vary and be decided on its own facts and circumstances. Taking the US Thaler case as an example, he could not demonstrate that the work originated from his own skill and labour. If Thaler had created the artwork himself, he could have been the owner, but in the absence of a human creator, the artwork could not be registered.

Going forward?

With the increased use of AI, will there be any changes to legislation to keep up with the modern and current trends? Perhaps more defined laws on AI? We'll be keeping our eye on any potential developments.


Fiona Chute

Senior Associate

Lucy Duff

Senior Solicitor

Syma Din

Trainee Solicitor