Two weeks ago, the US Copyright Office refused to register a copyright for Théâtre D’opéra Spatial, an AI-generated image that got widespread media attention last year after it won an art competition. It’s at least the third time the Copyright Office has ruled that AI-generated art cannot be copyrighted.

The Copyright Office first ruled on this issue in 2019. Artist Stephen Thaler tried to register an image that he said had been created entirely by a computer program. The Copyright Office rejected the application because copyright protection is only available for works created by human beings—not supernatural beings (like the Holy Spirit), not animals (like this now-famous monkey), and not computer programs.

The ruling raised an important question: Was the issue just that Thaler should have listed himself, rather than his AI system, as the image’s creator? Or is AI-generated art categorically excluded from copyright protection?

In recent months, the Copyright Office has endorsed this second view. In February, it canceled the registration of a comic book called Zarya of the Dawn that contained AI-generated images. Then on September 5, the office rejected the copyright for Théâtre D’opéra Spatial, holding that it “was not the product of human authorship” because it had been created by the AI software Midjourney.

I don’t think these more recent decisions are going to age well.

“The copyright office’s position follows fairly logically from what they’ve staked out,” Cornell University copyright scholar James Grimmelmann told me. “And that follows fairly logically from existing copyright doctrine or theory.”

At the same time, Grimmelmann said, “I don’t see this approach being scalable. It seems like a quagmire.”

Lessons from photography

In the 1880s, courts were deciding how copyright law should handl