Protecting Creativity by Artificial Intelligence: Part 3

February 06, 2019
Post by Kirk M. Hartung

Artificial intelligence (AI) inventions and discoveries discussed in part 2 of this blog series, which may be protectable with patents, are only one form of creativity by computers. AI can also generate written documents, music, and other creative works of authorship. See for example, CLOEM and Even software now exists that allows computers to use artificial intelligence to write patent applications, which long ago were deemed to be one of the most complex types of legal documents.

Apart from patent protection, U.S. copyright law protects original works of authorship fixed in a tangible medium. However, the copyright statutes do not define “author”. According to one U.S. Supreme Court decision, the author is the “person who translates an idea into a fixed, tangible expression”. Community for Creative Non-violence v. Reid, 490 U.S. 730. 737 (1989).

In 2014, the U.S. Copyright Office issued rules precluding registration of works produced by a machine that operates without any input from a human author. See Compendium of U.S. Copyright Office Practices, 3rd Edition, Section 313.2. This rule was issued in response to an effort to register a selfie photograph taken by a monkey. This rule does not specifically apply where a computer or AI machine is programmed by humans to create a work of art or authorship.

So while the copyright laws may not currently preclude protection for AI creative works, the policy of the Copyright Office does not permit a registration of such work. But registration is not required for copyright protection, which exists from the moment the work is fixed in a tangible medium.

The last significant changes to the US copyright statues was in 1976, when computer technology was still relatively young. Perhaps it is time for Congress to consider whether these laws need to be updated for computer generated works.

The United Kingdom, Ireland, and New Zealand have approved copyright protection for computer-generated creations. Germany and Australia have recent case law which specifies that human creation is a prerequisite for copyright protection.

Kirk Hartung is Chair of the Mechanical Patent Practice Group at McKee, Voorhees & Sease, PLC. For additional information please visit or contact Kirk directly via email at


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