Copyright and AI: Redefining Authorship in the Digital Age

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Navigating copyright in the age of AI is a complex task. Questions surrounding authorship, originality and infringement have become increasingly difficult to answer, as rapid advancements in artificial intelligence (AI) technology continue to redefine the landscape of creativity and innovation. 

Copyright law, the cornerstone of protecting authors’ exclusive rights over their original works of expression, finds itself at a crossroads in the face of rapid advancements in artificial intelligence (AI). As AI technologies continue to reshape the landscape of human creativity and innovation, questions surrounding authorship, originality, and infringement have become increasingly complex. The case of Mr. Ankit Sahni’s AI-based painting app “Raghav” and the artwork “Suryast” and the graphic book “Zarya of the Dawn” by Kris Kashtanova sheds light on the evolving challenges that copyright law faces in the AI era.

The evolving nature of authorship

Traditionally, the concept of authorship has been closely tied to human creativity. However, the emergence of AI has blurred these lines.  Can a machine be considered an author? Can an AI-generated work be deemed original? These questions challenge the foundational principles of copyright law. In the context of AI, authorship can be attributed to both human creators who design AI algorithms and the AI itself, which generates content.

In essence, the evolving nature of authorship in the AI era is a fundamental shift that tests our established ideas of creativity, ownership, and ethics. In order to ensure that both human and machine contributions to authorship are used to improve, rather than degrade, the quality and variety of content, society must carefully and ethically negotiate these shifts as AI develops.

Jurisprudence of Copyright and AI

According to natural rights theory which is based on the John Locke concept which asserts that a proprietor has natural rights over everything he creates with the help of own labor and efforts, either physical or intellectual. Thus, ownership stems from the hard work and innovation of the person who created/invented it. The main idea is that by putting in the work, individuals broaden their ownership rights from simply owning their labor to also owning the fruits of the labor when combined with previously owned resources.

The personality theorist claims that intellectual property is an aspect of individual personality. The personality theory as derived from the works of Kant and Hegel postulates that “an author’s personality, spirit and will cannot be free unless the author owns his/her work”. Intellectual property rights should safeguard both creativity and everything else that is included inside it.

There is a flaw in this notion when we consider that once the original work is created, it is apart from the author. When the art gets available to the public, it is up to them to decide how to receive and treat it. As a result, it is independent of the creator.

Some questions posed in front of us are : What role does the principle of natural rights play in AI-generated creation? Is the output of AI systems that have been trained on copyrighted data illegal? Under copyright law, might AI be regarded as “authors”? If so, who would own the rights? What does “infusing labor” mean in the context of AI.

The case of Mr. Ankit Sahni and the artwork “Suryast”

Mr. Ankit Sahni owns the AI-based painting app called Raghav. Raghav created the painting named “Suryast ” by amalgamating Vincent van Gosh’s painting ‘Starry Night’ and a photograph taken by Mr. Ankit Sahni.

Mr. Sahni filed two applications for registration of the artwork “Suryast”. The first application asserted Raghav as the sole author; this application was dismissed by the copyright office. The second application asserted both Raghav and Ankit Sahni as joint authors of the artwork. This application was accepted by the Copyright office and granted Raghav and Mr Sahni joint authorship.

However, the Copyright Office sent a withdrawal notice to Mr. Sahni, correcting the office’s error because conferring Co-authorship status to an Artificial intelligence (AI) is not expressly permitted by the Indian Copyright Act.

The Indian Copyright Act, under Section 2(d)(vi), designates the person who causes a computer-generated work to be created as its author. However, as the Copyright Office’s withdrawal notice to Mr. Sahni indicates, conferring co-authorship status to an AI is not explicitly addressed in the Act. This highlights the need for legislative updates that reflect the changing dynamics of creativity in the AI era.

The case of Zarya of the Dawn

A copyright registration for the graphic book “Zarya of the Dawn”, created using the generative artificial intelligence tool – Midjourney, was granted to Kris Kashtanova, a New York City artist, AI consultant, and researcher. As the first known case of an AI-generated work being successfully registered with the USCO, this registration received a lot of media attention thereafter.

Kashtanova did learn, however, that the registration may be revoked from the U.S. Copyright Office (USCO), which sent her a notification on October 28, 2022. As a result of Kashtanova using an AI generating tool (“the Midjourney service”) as part of the creative process, the USCO brought this notification to the public’s attention. The USCO claimed that “the information in [her] application was incorrect or, at a minimum, substantively incomplete.”

Last February 23, the US Copyright Office (“USCO”) cancelled the copyright registration for the comic Zarya of the Dawn, which had been created using AI, registered in the name of the artist Kristina Kashtanova, on the grounds that it was not the fruit of human creation. In short, the USCO concluded that users are not the authors of AI-generated images and cannot register the copyright in their name, even if they have actively participated in creating the prompts, or indications supplied to the AI.

The legal and ethical implications of AI-generated works

In the “Suryast” case, the copyright office also sent a notice of withdrawal to Ankit Sahni, asking for information regarding the “legal standing” of the “AI Raghav”. This notice was based on the notion that copyright is a work of art and would be assigned to the “artist” by default. To this date, the copyright for Suryast has remained registered. Thus, by establishing the precedent of AI as co-authors, it is reasonable to assume that AI will also be considered co-authors in subsequent works generated independently by AI without human input.

The person who programmed A.I. or contributed Data is acknowledged as the creator of works made by A.I., whether with or without human help. A lot of nations do not even protect works of art that are the result of autonomous machine effort. Taking credit for an A.I. work is irrelevant to a computer, when we ascribe authorship to someone other than the A.I. that developed autonomous works, we are essentially reaping the fruits of someone else’s labour.

In Amar Nath Sehgal v. Union of India, the Delhi High Court observed that “in the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights”. Moral rights are related to the feelings and emotions of the human author. These rights are not meant for AI. 

In Express Newspapers plc v. Liverpool Daily Post & Echo, the court considers the computer as a tool in the same manner as a pen is regarded as a tool. In the United States also, the author of a work which is created with the help of AI may have copyright if he/she establishes that the AI program was used as a tool/medium in the creation of the work.

The moral rights of AI-generated works

In India the author’s moral rights are enumerated in Section 57 of the Copyright Act 1957. Moral rights are derived from the theory of personality and are associated with the rights to paternity and integrity.

Due to the fact that moral rights are founded on personality theory, they should be limited when applied to works produced by AI. Since one considers their works to be an extension of themselves, moral rights are conferred.When it comes to AI, it might be challenging to define what self is.

When the honour and reputation of the author suffers harm, their moral rights are said to have been infringed. It is difficult to answer whether AI-generated works should be endowed with moral rights. There are no moral rights for writers, singers, filmmakers, or other producers of non-physical works in the United States; moral rights only apply to authors of “visual works,” which include tangible artefacts like paintings and sculptures. However, some claim that because an algorithm used to develop an AI system was coded by humans, AI-generated works should be given moral rights.

In conclusion, even if there is no definitive solution to the question of whether AI-generated works should have moral rights or not, it is crucial to think about the repercussions of granting or denying these rights.

This article is authored by Paridhi Sharma, 3rd year law student at University School of law and legal studies (USLLS), Guru Gobind Singh Indraprastha University. 


All efforts are made to ensure the accuracy and correctness of the information published at Legally Flawless. However, Legally Flawless shall not be responsible for any errors caused due to oversight or otherwise. The users are advised to check the information themselves.

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