On December 11, 2023, the U.S. Copyright Office’s Review Board rejected Ankit Sahni’s request for reconsideration of the Copyright Office’s earlier refusal to register an image created using generative AI. The Office found that the image was created using generative AI software and lacked sufficient human authorship to support registration. This is at least the fourth documented rejection on these grounds by the Copyright Office, which continues to draw a line deeper and deeper into the sand as to the copyrightability of AI-generated material.
According to Sahni, he generated the artwork by inputting a photograph he had taken into the RAGHAV Artificial Intelligence Painting App. Next, as the “style” input to be applied to the photograph, he input a copy of Vincent Van Gogh’s “The Starry Night” into RAGHAV. Finally, he chose “a variable value determining the amount of style transfer.”
In his original December 2021 application to register the resulting work (called “Suryast”), Sahni named RAGHAV as co-author because, in his words, RAGHAV’s “contribution [was] distinct, disparate and independent” from Sanhi’s contribution to Suryast. On June 29, 2022, the Office refused to register Suryast because it “lack[ed] the human authorship necessary to support a copyright claim.” The Office further stated, in response to Sahni’s claims that his contributions provided requisite creative input, that “[Sahni’s] human authorship cannot be distinguished or separated from the final work produced by the computer program.”
On September 27, 2022, Sahni sought reconsideration, arguing that “the human authorship requirement does not and cannot mean a work must be created entirely by a human author.” The Office upheld its rejection, concluding that Suryast could not be registered because it was a derivative work of Sahni’s photograph “that did not contain enough original human authorship to support a registration.” In other words, because the new portions of Suryast had been created by RAGHAV, they were not “the result of human creativity or authorship.”
On July 10, 2023, Sahni sought reconsideration again on three grounds: (1) RAGHAV was merely an “assistive software tool” akin to a camera that was subject to Sahni’s creative decisions; (2) Sahni “provided the traditional elements of authorship for both the original photograph and [Suryast]” by taking the original photograph and “direct[ing] the RAGHAV tool to make changes to the colors, shapes, and style in a particular manner”; and (3) Sahni asserted that Suryast is not a derivative work because it is not “substantially similar” to the original photograph. Sahni further argued that his input resulted in Suryast containing elements such as a sunset, clouds, and the “contours of a building,” in the style of Van Gogh’s “The Starry Night.” Sahni asserted that his “total creative input in both the original photograph and [Suryast] should be considered together, and [Suryast] should be analyzed for all the traditional elements of authorship present therein.”
