Copyrightability of AI-Generated Works: Human authorship & originality requirements

Introduction

In August 2019, the United States Copyright Office (USCO) rejected an application by Stephen Thaler to register an AI-generated visual work titled “A Recent Entrance to Paradise.” Thaler had originally asserted that the work was created autonomously by an AI algorithm known as the “Creativity Machine.” USCO cited the absence of human authorship, stating that Thaler “provided no evidence on sufficient creative input or intervention by a human author in the Work.” This position was upheld in various internal appeals, including Thaler’s second request for reconsideration to the Copyright Review Board and subsequent legal suits. Another leg of the copyrightability discourse focuses on copyright applications that claim a mix of human involvement and AI inclusion, introducing the question of originality. This second leg forms the basis of a large number of applications received by copyright offices in several jurisdictions, like the U.S. This article will address the legal requirements of human authorship and originality for copyright in light of AI deployment.

Human Authorship Requirement

Following USCO’s rejection of his copyright application, Thaler instituted a suit before the U.S. District Court in Thaler v Perlmutter (No. 22-CV-384-1564-BAH), claiming that the Office’s actions were arbitrary and not in accordance with the law. Examining constitutional provisions and copyright precedents, the court upheld USCO’s position and maintained that copyright protection is reserved for works of human creation. In upholding the traditional elements of copyright, the court stated thus, “Copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand.”

The U.S. Copyright Act 1976, just like the Nigerian Copyright Act 2022, makes reference to the “author” of the work. Thaler argued that “author” was not defined in the Copyright Act. However, the court applied the plain meaning of the Act to state that by its plain text, “the 1976 Act thus requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. Must that originator be a human being to claim copyright protection? The answer is yes.”

In addition to identifying the AI tool as the author, Thaler sought to claim the copyright of the work for himself “as a work-for-hire to the owner of the Creativity Machine.” Dismissing this claim, both USCO and the District Court concluded that since there is no human authorship element in the AI algorithm, no valid copyright could exist, and on that basis, there is nothing to transfer to Thaler under the work-for-hire principle. Furthermore, under the Copyright Act 1976, the definitions of a work-for-hire require that the individual who prepared the work is a human being, either under an employment or independent contract.

In the U.K., the Copyright, Design and Patents Act 1988 specifically provides for authorship of computer-generated literary, dramatic, musical or artistic work to be the person by whom the arrangements necessary for the creation of the work are undertaken. In this age of generative AI, this person has been viewed as the giver of the prompt. The UK’s approach is a proactive one in determining who the author of computer-generated works is before the question even arises.

The human authorship requirement is thus well-established, grounded in judicial precedents, statutes, and centuries of settled understanding.

Element of Originality

Copyrightability is also a question of originality. The Nigerian Copyright Act 2022 provides that literary, musical or artistic work shall not be eligible for copyright unless some effort has been expended on making the work, to give it an original character. This is similar to the U.K. Copyright Act 1988 which grants copyright to original literary, dramatic, musical or artistic works.

According to the U.S. Copyright Office, works are original when they are independently created by a human author (without copying) and have a minimal degree of creativity. With AI, creators can generate poems, images, and music from simple prompts – with little or no further ontribution from the prompt giver. How then is originality determined in the age of AI for the purpose of a copyright grant? Can AI-generated works be copyrighted? Will copyright be granted where the author does not independently create the submitted work but was assisted by AI? These questions will largely be determined on a case-by-case basis seeing as case law and jurisprudence is still being developed on the subject.

The United States approached this question of copyrightability in its Policy Statement titled: “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence.” According to the Guidance, the involvement of AI in the creative process may arise in several ways which are:

1. Human-authored works created with AI assistance (copyrightable); and
2. Entirely AI-generated works (not copyrightable).

Thus, where AI generates images or a poem, largely determining the content such as the rhythm and structure, copyright will not be granted. The Office will only protect works where the traditional elements of authorship come from the human creator. In all, the policy acknowledges that technology (including AI) can be a tool in the creative process. However, the important factor is the extent of human creative control. The focus is on how much the human creator shapes and controls the final product. The Office reports that since the Guidance was issued, it has registered hundreds of works that incorporate AI-generated material, with the registration covering the human author’s contribution to the work.

In early 2025, the Office released Part 2 of its AI Report which provides that outputs of generative AI can be protected by copyright only where a human author has determined sufficient expressive elements, such as making creative arrangements or modifications of the output. This, however, excludes the mere provision of prompts. According to Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office, “extending protection to material whose expressive elements are determined by a machine, however, would undermine rather than further the constitutional goals of copyright.”

A slightly different approach has been taken in China. In 2023, the Beijing Internet Court in Li Yunkai v. Liu Yuanchun ((2023) Jing 0491 Min Chu No. 11279), had to determine whether the plaintiff owned the copyright to a picture in question. The image had been created and modified using several prompts. The court granted copyright to the plaintiff on the grounds that the picture resulted from the plaintiff’s intellectual investment and reflected their personalized expression. A similar decision was made in the 2024 case of Lin Chen v Hangzhou Gaosi Membrane Technology, where the Changshu Court also granted copyright to the plaintiff, who had used prompts to create a visual artwork titled “With Heart.” The court found creative control in the composition of elements like the cityscape, water, buildings, and reflections.

These Chinese cases contrast with the U.S. position as outlined in the AI Report above, which expressly excludes “mere prompts” as a basis for granting copyright. However, one could argue that it is the mere input of prompts without further creative contribution, that would exclude copyright protection. Therefore, it may be inferred that when the applicant takes additional steps to modify the output and contribute to the final result – exercising creative control – copyright will be granted. This aligns with the U.S. Guidance cited earlier.

In the European Union, the courts in Czech Republic addressed a similar issue in 2024 which is the first EU decision on AI-generated works. The case involved copyright infringement arising from a generated image by DALL-E, which was generated using prompts and then published on the claimant’s website. The court emphasized that authorship requires the work to be the result of a unique creative contribution by a natural person. The court also noted that AI cannot be an author because it is not human. This aligns with traditional copyright law, which requires human authorship.

Additionally, the court held that the image wasn’t a unique result of the claimant’s creative activity, so no copyright could be granted. The creator had instructed DALL-E to “create a visual representation of two parties signing a business agreement in a formal environment; for example, in a conference room or a law office in Prague. Show only the hands.” However, there are arguments that the decision could have turned out differently had the instructions for DALL-E been much more targeted to have personalized the image. This line of thought suggests that the decision implies that a well-crafted prompt could be considered a creative activity. If the claimant could prove that the image was the direct result of their creative prompt, it might be eligible for copyright protection. This suggests that the prompt itself could be viewed as a creative contribution that justifies copyright protection for the AI-generated image.

In summary, these cases and policies highlight that where AI merely assists an author in the creative process, its use does not change the copyrightability of the output. However, if the content is entirely generated by AI, it cannot be protected by copyright.

Conclusion

In Nigeria, the Copyright Act does not address AI-generated works, neither is there any supplementary directional document. There are also currently no court cases, as AI development is still emerging in Nigeria. However, with the rise of copyright-related AI cases globally, it’s only a matter of time before our courts confront similar issues. Nigerian policymakers must therefore proactively define ownership and authorship of AI-generated content to provide clarity and support innovation.

CONTRIBUTORS
Drafted by Emadiong Lawrence (Associate)
Reviewed by Tilewa Oyefeso and Uche Wigwe (Partners)
Wigwe & Partners — www.wigweandpartners.com

For more information: [email protected]

DISCLAIMER: This article is published for general informational purposes only and does not constitute legal advice or legal opinion. It is not intended to create a solicitor-client relationship. For specific legal advice, please consult a qualified legal professional.