Tech & Sourcing @ Morgan Lewis


The Beijing Internet Court (BIC) recently recognized copyright protection in artificial intelligence (AI) generated images, ruling that the images met the requirements of originality and reflected a human's intellectual property investment. Li v. Liu, Written Civ. Rulings (Beijing Internet Ct. Nov. 27, 2023) (China).

In order for a work of authorship to be copyrightable, it must be "fixed in any tangible medium of expression, now known or later developed, from which [it] can be perceived, reproduced, or otherwise communicated, either directly or indirectly with the aid or machine or device." Compendium (Third) § 302.

The US Copyright Office will only register an original work of authorship that was created by a human being. Id. § 306. The Copyright Office has refused to approve registrations for works created using AI. In a February 2023 rejection letter for the visual artwork titled Zarya of the Dawn, the Copyright Office provided that the images of the work that were generated by AI technology were not the product of human authorship and, as such, were not copyrightable. US Copyright Office Correspondence, “Re: Zarya of the Dawn (Registration # VAu001480196),” Feb. 21, 2023.

US courts have also not recognized copyright protections for works authored by AI. The US District Court for the District of Columbia issued a decision in Thaler v. Perlmutter denying copyright protection for a piece of visual art that was generated autonomously using a computer algorithm running on a machine, where the application identified the author as the machine that generated the work (rather than the person using the machine). Civil Action No. 22-1564. The decision relied on an earlier case, whereby the US Supreme Court held that photographs, despite being captured through a machine, utilized some element of human original intellectual conception that made them copyrightable. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). The district court decided that, in contrast, copyright protection has never been extended to works that were developed solely through new forms of technology operating without any human authorship.

BIC’s Reasoning

The BIC stated in its November 2023 decision that the author put in a certain amount of intellectual investment, such as designing the presentation of characters, selecting and arranging the prompt, and setting relevant parameters, which together was enough to qualify for copyright protection. Even after producing an AI-generated image, the author continued to adjust and modify the prompts and parameters until the images at issue were produced. The BIC found that the images created were not just “mechanical intellectual achievements” but rather were independently completed by the author and reflected the author’s personalized expression.

Looking Ahead

While the decision is opposite of the Copyright Office’s Zarya of the Dawn decision, when compared to Thaler, it may still be in line with the district court’s decision, as authorship in Thaler was attributed to the machine that generated the AI output, rather than the human behind the machine.

It will be interesting to see how the Copyright Office continues to address generative AI in this area of evolving law, especially where other jurisdictions may come to contrasting conclusions.