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A Recent Entrance to Paradise, Creativity Machine
A Recent Entrance to Paradise by Creativity Machine (Maybe? Don’t sue me!)Image courtesy of US Copyright Office

Can AI ever be truly creative? A new court case lays down the law

Inventor Stephen Thaler is fighting for his Creativity Machine to be recognised as a real artist – a legal battle that reflects changing ideas about creativity and intelligence

Are AI systems really able to generate new art, or are they just rehashing the efforts of human artists, via human-created algorithms? Can they be considered original artists, or creative collaborators, or are they merely a tool? These are the questions at the centre of an ongoing legal debate about authorship in the AI art world, and the results could have far-reaching consequences.

Of course, AI art has already generated numerous legal and ethical dramas, from the potential copyright breaches of large-scale data scraping on platforms such as DeviantArt, to the projected replacement of humans in creative industries, to the endless possibilities for image-based misinformation. Usually, though, the humans are the “victims” – the ones having their work ripped off, reproduced, or replaced. This time, a computer scientist is arguing that his AI art generator is the one being treated unfairly by the courts.

On Friday (August 18), a federal judge in Washington, DC weighed in on an ongoing court battle, which has seen inventor Stephen Thaler seek to establish legal protections for the art generated by his AI system, Creativity Machine. Why is this court case so important? Well, it would essentially mean acknowledging “intelligent” computer systems as creators of original artworks. This could help lay the blueprint for how we understand and interact with AI art in the future, as it comes to dominate the culture we consume on a daily basis.

Below, we dive deeper into the latest developments in the court case, and its implications for artists everywhere.


Creativity Machine is the brainchild of Stephen Thaler’s Imagination Engines Incorporated, an AI company that dates back to the 90s, loosely basing its technology – like much of today’s most prominent AI – on the structures of the human brain. The machine’s not just about image generation. It’s also ‘come up’ with its own inventions, composed music, and been tangled up in the controversial field of AI military tech.

Importantly, Thaler also thinks that his AI systems are actually capable of true creativity – not just mimicking human behaviour, like large language models such as GPT-4. In the past, he’s even claimed that they’ve gained sentience.


The work in the spotlight is titled A Recent Entrance to Paradise and it’s a digital artwork (although physical art robots like Ai-Da could presumably run into similar roadblocks). According to Thaler, it’s part of a series that “simulated a near-death experience”. It’s unclear how an AI system can comprehend a near-death experience – maybe it’s what happens when you turn it off and on again? – but visually it draws heavily on the human imagination, showing a railroad tunnel covered in grainy, psychedelic greenery, and overlaid with enigmatic after-images.


Thaler initially tried to register the A Recent Entrance to Paradise with the US Copyright Office back in 2018, naming Creativity Machine as the author of the artwork, since it was “autonomously created by a computer algorithm running on a machine”. Unfortunately for the inventor, it didn’t go down too well. The office denied the application in August 2019, on the basis that the artwork lacked “the human authorship necessary to support a copyright claim”.

That wasn’t the end of the story, though. Thaler persisted, urging the office to reconsider his application, which was denied a second time in 2020. He responded by calling the decision “arbitrary, capricious, an abuse of discretion, and not in accordance with the law”, as well as claiming that it wasn’t supported by substantial evidence.


There have been a few back-and-forths about the legal status of art created by artificial intelligence, but things aren’t looking good for Thaler in the latest ruling by Judge Beryl A. Howell, of the US District Court for the District of Columbia. Howell shot down the Creativity Machine creator’s bid to register A Recent Entrance to Paradise for a third time on Friday (August 18).

In a 15-page document, Howell once again took aim at the lack of “human authorship” in the artwork, in agreement with previous requests issued by the copyright office. While the law is “designed to adapt with the times,” she says, “human creativity is the sine qua non at the core of copyrightability.” In other words, without our notions of human creativity, copyright laws couldn’t even exist.


Unsurprisingly, Thaler’s legal team intends to appeal the decision once again. In Howell’s ruling, she herself notes that we’re undoubtedly “approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works”. In the future, she adds, challenging questions will be raised by the question of how much input a given human being or AI has to have in a work, to be considered its author.

This echoes a much bigger, broader question as AI-powered systems become increasingly powerful (as they inevitably will). At what stage do we begin to think of them as autonomous, creative beings, and not just tools that can be used to expand the repertoire of human artists? Will we be violating their rights, if we deny them ownership of their own creations? Right now, it’s unclear, but cases like the Creativity Machine battle might help us find answers we can agree on.