Creative AI: how long will it remain a misunderstood genius?

13 April 2022 | AI, Copyrights, Intellectual property

Computers support human creativity. They take repetitive tasks from us, or they give us a helping hand with their endless computing power. SSofar, it has always been this way: the programmer as master of the code.

But what if these positions are turned upside down? What if the role of humans in creative choices becomes negligible, or even disappears? And the computer starts creating itself?

With Artificial Intelligence (AI), we are entering an innovative, disruptive world of thought, which seems to be in stark contrast to the unwieldy slowness of the regulator. Can the output of an AI system enjoy copyright protection? And who is this author?

Steven Thaler, the AI activist

Contrary to Belgium, you can register your work in the United States. It is not necessary, but it is possible, and it offers a certain advantage in the event of a lawsuit. You can then claim statutory damages. These are very high and therefore often more interesting than the actual damage suffered.

A few years ago, Steven Thaler applied to register a copyright in this way. The object was a computer-generated image createdautonomouslyby a computer algorithm called the “Creativity Machine”.

We have previously written about Thaler’s attempts to obtain a patent naming an AI machine as the inventor. These applications were rejected in the US, UK and Europe, but granted in South Africa and Australia!

A Recent Entrance to Paradise

The image, entitled “A Recent Entrance to Paradise”, represents a “simulated near-death experience”. Here, the algorithm reprocessed photos to create hallucinatory images when creating a fictional story about the afterlife.

The application was rejected by the U.S. Copyright Office Review Board for lack of human authorship. After receiving a second request for reconsideration from Thaler, the Board confirmed on 14 February 2022 that human authorship is a requirement for copyright protection in the United States and therefore the image could not be registered.

In doing so, the Board of Appeal accepted Thaler’s own representation that the image had been created autonomously by artificial intelligence without any creative contribution by a human being. Moreover, Thaler did not request to be named as author. The main question for judges was thus Thaler’s claim that the requirement of human authorship is unconstitutional and has no support in case law.

Creative expression of a human spirit

However, the Board believes that the (US) Supreme Court considers the link between the human mind and creative expression to be a necessary condition for copyright protection. Lower courts have also repeatedly rejected “attempts to extend copyright protection to non-human creations”.

No divine creatures

For example, there was the discussion about a book containing words “written” by non-human spiritual beings. This publication could only receive copyright protection if there was “human selection and arrangement of the revelations”(Urantia Found. v. Kristen Maaherra). (Urantia Found. v. Kristen Maaherra). Kristen Maaherra).

And no animals either

And a monkey cannot register copyright on photos it captures with a cameraNaruto v. Slater). Slater).

But what about copyright in Belgium?

Belgian artists, musicians and designers are also experimenting with AI. Who is the “copyright owner” there? If I, as an individual, instruct an artist to create a work, then, in principle, that artist remains the author and rightful claimant. But what if it is the artist who instructs an AI system?

The Belgian answer is simple, and dictated by (the) law: “The original copyright holder is the natural person who created the work.” So, by a simple reading of the law, there seems to be no room today to start recognising AI systems artistically as well.

For now, AI activism and technology optimism are running up against the literal and verbal limits of laws and regulations written when computers did not exist


As progress in the field of artificial intelligence increases exponentially, the question of the authorship of AI systems is bound to be raised again. The evolution of AI will force society to continually evaluate what separates creative expression by humans from that by machines, and to what extent machines will remain the servants of mankind.

A social debate about this is desirable and inevitable. The proposition that creations by AI systems should end up in the public domain does not seem feasible to us in the long run. Just as companies invest in their researchers and want to protect their results as intellectual property, in the near future, entrepreneurs will invest heavily in the development of even better and autonomous AI systems. It seems only logical that the products of such systems will also enjoy some form of protection.

Do you have questions about new technologies and how the legal systems deal with them? Ask them at!

Written by Kris Seyen, Partner theJurists

Our services

Information Technology

Intellectual Property