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 2026

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

Regulatory changes and damages risks are prompting Canadian firms and clients to opt for settlements in generic and biosimilar cases
News of Via Licensing Alliance adding two new members and Nokia’s proposal to extend interim licences to Warner Bros Discovery and Paramount were also among the top talking points
A new claim filed by Ericsson, and a request for access to documents, were also among recent developments
Cooley and Stikeman Elliott advised 35Pharma on the deal, which will allow GSK to get its hands on S235, an investigational medicine for pulmonary hypertension
Simon Wright explains why the UK should embrace the possibility of rejoining the UPC, and reveals how CIPA is reacting to this month’s historic Emotional Perception AI case at the UK Supreme Court
Matthew Grady of Wolf Greenfield says AI presents an opportunity in patent practice for stronger collaboration between in-house and outside counsel
Aparna Watal, head of trademarks at Halfords IP, discusses why lawyers must take a stand when advising clients and how she balances work, motherhood and mentoring
Discussion hosted by Bird & Bird partners also hears that UK courts’ desire to determine FRAND rates could see the jurisdiction penalised in a similar way to China
The platform’s proactive intellectual property enforcement helps brands spot and kill fakes, so they can focus on growth. Managing IP learns more about the programme
Hire of José María del Valle Escalante to lead the firm’s operations in ‘dynamic’ Catalonia and Aragon regions follows last month’s appointment of a new chief information officer
Gift this article