Exclusive: US Copyright Office refuses AI-assisted ‘derivative’ work

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Exclusive: US Copyright Office refuses AI-assisted ‘derivative’ work

ArtI.jpeg

The office rejected the application because the artwork covered didn’t meet the threshold of creativity required for derivative works

The US Copyright Office has refused an appeal that sought copyright protection for an artificial intelligence-assisted artwork, Managing IP can reveal.

The applicant, Ankit Sahni, had listed the AI tool 'RAGHAV Artificial Intelligence Painting App' as a co-author of an artwork called 'Suryast'.

RAGHAV used Vincent van Gogh’s painting ‘The Starry Night’ and a photograph taken by Sahni as base datasets to create the painting.

According to the office, which delivered the decision on April 10, Sahni's acts of feeding a photograph he took into the AI tool and selecting an available style and setting didn’t meet the threshold of human creativity needed to support a copyright claim in a derivative work.

However, the office said the artwork covered still counted as a derivative work because it comprised an original photograph altered by assistive software.

The decision was possibly one of the first rulings by the US Copyright Office regarding an AI-assisted work since it published AI guidance in March.

In that guidance, the office said copyright could only protect material that was the product of human creativity.

However, the authority left open the possibility of registering AI-generated works by noting that it would decide applications on a case-by-case basis.

The office initially refused Sahni’s application for the artwork in June 2022, after which he filed an appeal.

Sahni cited the US District Court for the Southern District of New York’s ruling in SHL Imaging v Artisan House to contend that using the RAGHAV app was “no different” than an author who modified a pre-existing image using a camera, photo-editing software, or traditional filters.

But the office rejected the argument, saying the photos in that case were not derivative works and that there was nothing in the decision to suggest that the photographer took images and modified them using photo-editing software.

Sahni told Managing IP he was surprised that the office suddenly classified 'Suryast' as a derivative work after months of back and forth.

“It wasn’t contended anywhere in the previous refusal,” he said.

He added that an author creates multiple intermediate works before reaching a final output.

“To say that each intermediate work was a derivative of the previous version is a fallacious argument.”

According to Sahni, copyright protection should be available for a work that has transformed into something so different from its original form that it stands on its own.

Sahni added that substantial creative effort is involved in picking a filter, deciding the extent of ‘style transfer’, and selecting other variable attributes that go into an AI tool.

“It's much more effort than simply using a mobile phone to click an image,” he said.

Alex Garens, partner at Day Pitney in Boston who represented Sahni before the US Copyright Office, said the logic of the decision, if adopted broadly, would have wide-reaching and likely unintended consequences.

“It implies that the application of an AI-powered tool or filter would likely render the output unprotectable.

“These tools are broadly used by content creators in video, film, and music production,” he noted.

“If using such tools would deprive the creators of copyright protection, they will either not use the tools, hampering the creative process of the industry, or will continue to use them but without disclosing their use to the US Copyright Office, undermining the integrity of the entire registration system,” Garens added.

Sahni said he plans to appeal the decision before the Copyright Office Review Board.

The ‘Suryast’ image has copyright protection in India and Canada.

more from across site and SHARED ros bottom lb

More from across our site

News of a breakaway firm launching in Germany and a spike in vaccine-related patent applications were also among the top talking points
A flurry of hiring activity among UK firms suggests they are confident of mounting a serious challenge at the UPC
With the submission deadline approaching, we sat down with our research team to provide top tips on how to make your firm stand out
EA, owner of video games including Madden and The Sims, will be sold to a consortium including Saudi Arabia’s Public Investment Fund and a firm owned by Donald Trump’s son-in-law
New arrival marks Mewburn Ellis' second partner hire in ten days as firm looks to boost patent litigation and prosecution capabilities
In-house counsel and teams are invited to submit information for the 21st annual Managing IP Awards
The 2025 list of Rising Stars and Corporate Stars, produced by Managing IP’s accreditation title IP STARS, is now available
Eszter Szakács, partner at Danubia in Hungary, discusses women’s progression, workplace flexibility, and how to deal with imposter syndrome
Rob Fewery is a solicitor at Allwyn Entertainment in the UK
Piotr Rafalski is a patent attorney at Qemetica in Poland
Gift this article