In her ruling, DC District Court Judge Beryl A. Howell says that human beings are an “essential part of a valid copyright claim.” This is the latest in a series of court cases seeking to determine if original material generated by AI can be copyrighted under existing law.

The ruling came out last Friday, and the judge was quite clear AI content couldn’t be copyrighted. This case involved a lawsuit against the US Copyright Office after it refused to copyright a work by a person named Stephen Thaler.

In it, Thaler created an AI-generated image with the Creativity Machine algorithm he’d created and sought to copyright the work. So how did Mr. Thaler look to get his AI-generated image copyrighted? Well, according to the case, the image was filed in the copyright process “as a work for hire to the owner of the Creativity Machine.” This would have listed the author as the creator of the work, and Thaler as the artwork’s owner.

But the US Copyright Office flatly rejected the claim multiple times, so Thaler filed suit after the office sent its final rejection last year. With the suit, Thaler claimed that denial of his AI-generated work was “arbitrary, capricious … and not in accordance with the law.”

According to last week’s ruling, the judge didn’t’ share Thaler’s view. In the decision, Judge Howell wrote that copyright has yet to be granted with the “absent of any guiding human hand.” She went on to add that “human authorship is a bedrock requirement of copyright.”

To come to her decision, Judge Howell pointed to a case that saw a woman compile a book from notebooks that she’d filled with “words she believed were dictated to her” by some kind of supernatural “voice.” And that the work itself was worthy of copyright.

Though, the decision wasn’t all doom for creators who use AI to create content. In the ruling, the judge also acknowledged that due to AI, humanity was “approaching new frontiers in copyright,” as more and more artists utilize the technology to create original work.

In the decision, she also went on to write that this would, in the short term, create “challenging questions regarding how much human input is necessary” to copyright AI-created art. She noted that AI models are often trained on pre-existing work which could complicate matters legally.

According to Bloomberg Law, Stephen Thaler will seek to appeal his case, and his attorney, Ryan Abbot of Brown Neri Smith & Khan LLP, said, “We respectfully disagree with the court’s interpretation of the Copyright Act.”

With this case and many others, it’s clear that the law is still quite behind in terms of how to react to AI. Earlier this year, a U.S. House Rep out of Massachusetts used ChatGPT to generate a speech to bring attention to the need for Congress to get head-on AI regulation.

The Biden Administration seems to be working on this issue as well in two ways. Directing federal agencies to determine how they could use existing laws to create rules surrounding AI. They also released a road map for AI governance as well.

While I applaud these attempts at clarity, I believe the issue is unresolvable. The facts are that whether sentient or not, machines can produce creative work that is original and was conceived in exactly the same ways humans do when developing new content.

Machines rely on a complex large language model, and a set of algorithms that train them to assume next words or phrasings following preceding words or phrasings, just the way humans do when composing thoughts, pictures or using technology to create art.

The Copyright Act of 1976 was adopted by Congress to avoid having constantly to amend copyright laws to account for the development of new technologies and means of expression, such as still photography, motion pictures, or recordings.

A key principle of copyright law is fair use, which permits limited use of content protected by copyright without permission. Copyright infringement does have some exceptions though, such as fair use.

For specific purposes, such as criticism, commentary, news reporting, or research, fair use permits the use of copyrighted content. It is not always apparent, nevertheless, whether a specific use of copyrighted content falls under the fair use doctrine because it is complicated and fact-specific. Fair use analysis in the context of AI, however, presents fresh difficulties. Large datasets, which frequently include copyrighted works, are used by AI algorithms to train and hone their skills.

Meta’s ChatGPT language model is trained on a sizable text and code dataset. Books, essays, and short stories with copyrights are all included in this dataset. According to Meta, the usage of this copyrighted material by Meta is permissible. However, some authors and publishers have filed lawsuits against Meta, claiming that the usage of their intellectual content by the company violates those rights as stated in the above paragraphs.

The future and development of copyright law depend on what result this litigation brings out. Using copyrighted content to train AI language models will become increasingly common if the courts decide that Meta’s use of it constitutes fair use. The potential copyright infringement could increase as a result, but it could also lead to new and creative applications of AI.

My bet is that the next iteration of the Copyright Act of 1976 will contain no protection for “original” work, because it will be impossible for courts to determine the constitution of original work. As Pablo Picasso famously said, “Good artists copy, great artists steal.”

To which Steve Jobs doubled down by stealing the concept of the Macintosh computer from a similar device that was shown to him at Xerox’s Palo Alto Research Center. Throughout history, great artists, writers and scientists have always confessed that as Hemingway said, ““It would take a day to list everyone I borrowed ideas from, and it was no new thing for me to learn from everyone I could, living or dead. I learn as much from painters about how to write as I do from writers.”

Conclusion? Stop it.

Let AI do what it does, as soon, it will be far more capable than you or I and those “victims” who suffer from our inability to assign attribution to them for their contribution to a particular story or art piece, my advice would be, go create something so magical that in spite of yourself, you will be bound to be remembered for it. Because I know it’s not about the money, it’s about the recognition. And if it is truly great, it will stand the test of time and history.