Can AI Images and Text Ever Be U.S. Copyright Protected?

generate an image representing copyright

NOTE: For years, I have either been using my own images or public domain images from the internet. Since the ruling in Thaler v. Perlmutter, No. 23-5233 (D.C. Cir. March 18, 2025). https://media.cadc.uscourts.gov/opinions/docs/2025/03/23-5233.pdf I have been using generated images because of the time it takes me to find officially public domain images and the large number of websites that stick a copyright claim on public domain images. 

This case established that an artwork created entirely by an artificial intelligence system, which Dr. Stephen Thaler called the "Creativity Machine," cannot be registered for a copyright because the Copyright Act of 1976 requires a human being to be the author. The opinion was issued on March 18, 2025 (Thaler v. Perlmutter, 2025). Dr. Thaler has since filed a Petition for a Writ of Certiorari to the Supreme Court, asking the Court to take the case, but the Supreme Court has not yet issued a decision or a denial.

Here is the actual wording of the case:

We affirm the denial of Dr. Thaler’s copyright application.  The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being.  Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material.  Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and using the Creativity Machine because that argument was waived before the agency. 

Granted that the Supreme Court could modify or reverse the district court's ruling but given the quantity of internet or generated slop (like my image above) I doubt that the Supreme Court will allow all or even most of it to copyright protected. There is also another major issue. The generative ability of tools such as Photoshop using Nano Banana achieve resolution and quality that makes identifying generated images extremely difficult. In addition, there is the whole genre of "illustration" where the quality and use of the images does not warrant preservation or ownership. 

Of course the argument that my prompt "created" the image above but that is a weak legal argument. It is not the causation of image event that determines the exact content of generated images. Here is another image generated using exactly the same prompt. The first image above was generated by Google Gemini. This image was generated by Adobe Firefly. By the way, the Gemini image is watermarked (the icon in the lower right hand corner). Here is the prompt: generate an image representing copyright.

Generated images from Adobe Firefly are watermarked, but whether you see a visible watermark depends on your subscription: Free users will have a visible Adobe Firefly watermark on their downloaded or exported images. Paid subscribers (such as those with a Firefly Premium or Adobe Express Premium plan) can download their creations without the visible watermark. Regardless of the user's plan, Adobe also automatically applies Content Credentials—invisible metadata that confirms the image was created using Adobe Firefly, promoting transparency about its AI origin.

So, what about the question in the title to this post? Presently, U.S. copyright law does not automatically impose a copyright on all works. For a work to be protected by copyright, it must meet three fundamental criteria:

• Originality: It must be an independent creation of the author and possess at least a minimal degree of creativity.
• Authorship: It must be created by a human author (works created solely by nature or by AI without human input are generally not copyrightable).
• Fixation: It must be "fixed in a tangible medium of expression." This means it must be captured in a form that can be perceived, reproduced, or communicated (e.g., written down, recorded, saved as a digital file).

There is no requirement that the work be identified as copyright protected such as using the copyright symbol above. However, other countries, besides the U.S., may impose different requirements. 

For the time being, we await the Supreme Court's ruling in the Thaler case.