Can you copyright artwork made using AI?

Summary

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The Indicator from Planet Money

Episode: Can you copyright artwork made using AI?

Date: August 25, 2025
Host: Waylon Wong
Guest: Emma Jacobs (Reporter, Montreal), David Fuhr (General Counsel, CIPPIC, University of Ottawa), Ankit Sani (IP Lawyer, New Delhi), Karis Craig (Law Professor, York University)

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Overview

This episode explores a rapidly emerging question: Can you copyright artwork made using AI? The hosts examine the legal grey area around copyrighting creations made wholly or in part with generative AI tools like ChatGPT and DALL·E, using a case study of an international legal experiment. The discussion highlights how different countries are responding to this challenge and the tricky spectrum of "human creativity" when machines assist or collaborate in producing art.

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Key Discussion Points & Insights

1. The Two Faces of AI and Copyright (00:11–01:03)

• Many lawsuits against AI companies involve inputs (AI scraping copyrighted works for training data), but this episode focuses on outputs: Who owns what AI generates?
• Host Waylon Wong and guest Emma Jacobs frame the complexity: What if an AI produces part of the work and a human contributes the rest—does copyright apply, and who would hold it?
  • "What if you use ChatGPT to partly create something and then a human creates the rest of the... Is it eligible for copyright? And if so, who holds it?" (Emma Jacobs, 00:40)
  • "You are breaking my brain, Emma." (Waylon Wong, 01:03)

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2. The Human Creativity Requirement in Copyright Law (02:15–03:44)

• David Fuhr (CIPPIC) explains the historical bedrock of copyright law: Only works created by humans can be copyrighted.
  • "There's lots of stuff out there that's beautiful. You know, the Grand Canyon is extraordinarily gorgeous, but there's no copyright in it. There's no author of that natural formation. It's gotta be a work produced by a human, we would say, for there to be copyright in it." (David Fuhr, 03:00)
• Simple AI-generated outputs (e.g., "show me a cat") don't qualify, as the human creative input is negligible.

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3. The Spectrum of Human Involvement in AI Art (03:44–03:59)

• The conceptual shift: There’s now a spectrum of human–machine collaboration, from trivial prompt entering to deep creative involvement, raising questions about where to draw the line.

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4. Case Study: Ankit Sani’s AI–Human Artwork Mashup (03:59–06:24)

1. Experiment Design

   • Ankit Sani, an IP lawyer in India, created an app that would re-render an original smartphone photo (a sunset) in the style of Van Gogh's Starry Night (public domain).
   • "I obviously tinkered around with the variables, which was how much style was to be transferred." (Ankit Sani via podcast, 05:14)
   • The resulting image, "Suryas" (Hindi for "sunset"), was then submitted for copyright registration in India, the US, and Canada, with both Sani and his AI app listed as co-authors.

2. Registry Outcomes:

   • India: Application was granted, withdrawn, then upheld after appeal.
   • United States: Rejected (maintained on appeal), as copyright requires a human author.
   • Canada: Registration is automated with no review; Sani’s work entered the registry.

   "In Canada, there is no human review. You fill out a form, pay a fee, and click, you're in the registry… registration isn't actually what gives someone copyright. It functions more like proof if a conflict arises." (Waylon Wong, 06:06)

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5. The Legal Challenge in Canada (06:24–07:26)

• David Fuhr objected to the Canadian registration, fearing it implied that wholly or partially AI-made works could be copyrighted.
• Attempts to contact Sani for correction were unsuccessful, so Fuhr sought a federal court order to expunge the registration, prompting Sani to hire legal representation.

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6. Broader Ramifications & Law Professor Perspective (07:07–08:12)

• Karis Craig (York University) comments on the significance of these registry battles:
  • "There are lots of people who agree that these decisions could ultimately prove kind of critical in terms of how we see generative AI evolve and change our cultural landscape." (Karis Craig, 07:33)
• Anecdotes of US copyright office decisions:
  • An application was rejected even when the human issued 600+ prompts.
  • A graphic novel partly illustrated with Midjourney was granted partial protection.
  • In the "Single Piece of American Cheese" case, the artist earned protection only for arranging AI-generated pieces, not for the pieces themselves.

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7. The Messy Reality and Ongoing Legal Evolution (08:12–09:26)

• The US approach is to carve out non-copyrightable AI-made content from the human contributions.
  • "The difficulty is... to kind of parse what did the AI generate versus what did the human author or user create." (Karis Craig, 08:55)
• As AI is embedded into everyday software, drawing these lines will only get harder and more important.

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Notable Quotes & Memorable Moments

• "You are breaking my brain, Emma." – Waylon Wong on the copyright dilemmas (01:03)
• "It's gotta be a work produced by a human, we would say, for there to be copyright in it." – David Fuhr (03:10)
• "I obviously tinkered around with the variables, which was how much style was to be transferred." – Ankit Sani (05:14)
• "There are lots of people who agree that these decisions could ultimately prove kind of critical in terms of how we see generative AI evolve and change our cultural landscape." – Karis Craig (07:33)
• "The difficulty is going to be... to kind of parse what did the AI generate versus what did the human author or user create." – Karis Craig (08:55)

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Important Segment Timestamps

• 00:11: Introduction of the AI copyright dilemma
• 02:32: Appearance of David Fuhr, context on copyright law fundamentals
• 03:44: Human vs. AI contribution spectrum
• 04:11: The Sani case and international experiment details
• 06:06: Explanation of Canadian registration process
• 07:07: Legal reaction and commentary from Karis Craig
• 08:12: US cases and the struggle to define boundaries
• 09:08: Future challenges as AI becomes more integrated

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Conclusion

This episode lays out the evolving legal landscape around copyright in the age of generative AI. It demonstrates that current laws are struggling to keep up with technological change, leading to differing legal approaches worldwide and a moving target for creators who work with AI. As AI becomes ever more integrated into creative tools, the line between human and machine authorship—and the question of copyright—will only become murkier and more significant.

Transcript

[Emma Jacobs]

Npr.

[Waylon Wong]

This is the indicator from Planet Money. I'm Waylon Wong. You've probably heard about all the lawsuits against AI companies by groups of writers, the New York Times and Getty Images. They've all alleged the big AI firms violated their copyright by scraping up their material to train AI systems. But there's another issue at hand, too. And joining me to talk about that today is Emma Jacobs. Welcome.

[Emma Jacobs]

Hi.

[Waylon Wong]

Hi, Emma. And you are a reporter in beautiful Montreal, Canada?

[Emma Jacobs]

I am. Thank you for having me. And that other copyright issue being raised by generative AI tools like ChatGPT and Dall? E is who owns the stuff they produce. Or even more complicated, Waylon, what If you use ChatGPT to partly create something and then a human creates the rest of the Is it eligible for copyright? And if so, who holds it?

[Waylon Wong]

You are breaking my brain, Emma. So today on the show, we look at these issues through the story of one guy who mashed up a photo he created with Van Gogh's Starry Night.

[Ankit Sani]

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[Emma Jacobs]

A lot of the broad strokes of copyright law have actually been set by international agreements, which countries then implement. But international rules haven't been worked out yet. When it comes to AI, that means countries must try and figure things out on their own, at least for now, I'll confess.

[David Fuhr]

I mean, I've got the best job in intellectual property law in Canada.

[Waylon Wong]

David Fuhr works on big challenges like this in Canada. He's general counsel at the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa. SIPIC for short.

[Emma Jacobs]

He's one of those people trying to figure out what the rules around AI and copyright should be For a long.

[Waylon Wong]

Time, intellectual property lawyers like David have thought of copyright as a system that creates incentives and rewards for humans to make things.

[David Fuhr]

There's lots of stuff out there that's beautiful. You know, the Grand Canyon is extraordinarily gorgeous, but there's no copyright in it. There's no author of that natural formation. It's gotta be a work produced by a human, we would say, for there to be copyright in it.

[Waylon Wong]

But he says works involving AI can follow along more of a spectrum of human involvement.

[David Fuhr]

Probably the easiest of the cases that we're going to get. I mean, the absolute easiest is just a text prompt that says, show me a cat, you know, and the AI pops up an image of a cat.

[Emma Jacobs]

In this situation, David and most other IP lawyers think you just won't get copyright.

[Waylon Wong]

Okay, so I won't be launching my illustrious art career that way. But, you know, it's like the human contribution, the human effort involved is just so minimal. Right?

[Emma Jacobs]

Yeah. And an AI application, it doesn't really need incentives to make stuff.

[Waylon Wong]

But at the other end of the spectrum, you might see more of a human AI collaboration. The question then becomes, how much human involvement would you need to get copyright?

[Emma Jacobs]

As David was mulling all this over, he was looking for a test case that might help clarify these difficult issues. And in 2022, he found one. In Canada's copyright registry.

[David Fuhr]

The registration listed a human author, but also an artificial intelligence application as the authors.

[Emma Jacobs]

The guy who filed this registration was also an IP lawyer looking to test the rules on copyright. His name's Ankit Sani, and he lives in New Delhi in India. Now, Waylon, I don't know if you had a pandemic hobby.

[Waylon Wong]

I just played Animal Crossing on Nintendo Switch 24 hours a day.

[Emma Jacobs]

That sounds terrific. Well, Sani's pandemic hobby was to run a series of international experiments around artificial intelligence and copyright law.

[Waylon Wong]

Okay, so we relax in very different ways.

[Emma Jacobs]

Yeah, totally. But Sanni started out by commissioning his own AI app, which can take one image and recreate it in the style of a second image.

[Waylon Wong]

Next, Sanni chose a photo he'd taken with his phone of a sunset. And using the app, he regenerated it in the style of a very old famous painting in the public domain. Vincent Van Gogh's the Starry Night.

[Emma Jacobs]

That's the one with all the blue swirls in the sky.

[Ankit Sani]

I obviously tinkered around with the variables, which was how much style was to be transferred.

[Waylon Wong]

This is Sanni speaking on a podcast called Warfare of Art and Law.

[Ankit Sani]

And then the output that got generated is what was what we ended up naming Suryas, which is the Hindi word for sunset.

[Waylon Wong]

Sani then tried to register the new image with three copyright offices around the world. India, the US and Canada. In his applications, he listed himself and the AI app as co authors.

[Emma Jacobs]

How each of these countries responded shows just how complicated this matter is. In India, his application was granted, then withdrawn, but eventually upheld. In the US it was rejected, and that rejection was upheld on appeal. Which brings us back to Canada.

[Waylon Wong]

Unlike the US and India, registration is basically automated. In Canada, there is no human review. You fill out a form, pay a fee and click, you're in the registry. And it's important to note here, registration isn't actually what gives someone copyright. It functions more like proof if a conflict arises.

[Emma Jacobs]

Now, in the case of the Sunset Starry Night mashup, no one had challenged ownership of the work in Canada, but David had a problem with the registration itself. He said it was sending a message that AI work could be copyrighted. He and his colleagues first tried to reach out to Sani to bring our.

[David Fuhr]

Concerns to their attention, to ask for a correction of the registration, and we just didn't get an answer.

[Waylon Wong]

We, by the way, also tried to get in touch with Ankit Sani through his lawyer and a registered letter and did not hear back.

[Emma Jacobs]

But when David didn't hear back, he asked Canada's federal court to expunge the registration.

[Waylon Wong]

And that seemed to get Sani's attention. Sani hired a Toronto law firm to fight back.

[Emma Jacobs]

One person who was pleased to see this go to court is Karis Craig, a law professor at York University in Toronto. When she heard Canada had let this image into the registry, I think I.

[Karis Craig]

Mostly ruled my eyes.

[Waylon Wong]

But she also knew Ankitsani wasn't the only person running this kind of experiment. Past registry decisions have actually provided some of the first indicators of what AI work qualifies for copyright.

[Karis Craig]

There are lots of people who agree that these decisions could ultimately prove kind of critical in terms of how we see generative AI evolve and change our cultural landscape.

[Waylon Wong]

Now, as we said, the US office rejected Sanny's application for having a non human author.

[Emma Jacobs]

But overall, experiments in the United States have had mixed results. One applicant who gave an image Generator More than 600 prompts also got rejected. But someone else who used an AI program called Midjourney to illustrate their graphic novel did get some protection.

[Karis Craig]

Most recently, I think there was an application to register a work that was called A Single Piece of American Cheese. I don't know if you heard about that one.

[Waylon Wong]

I had not, but I'm definitely intrigued.

[Emma Jacobs]

This image looks like a mosaic of a woman's face with sort of melting cheese looking hair. The US Copyright Office would only grant the artist copyright protection for his arrangement of the AI generated pieces of the mosaic.

[Waylon Wong]

And if this all sounds pretty messy, that's because it is.

[Emma Jacobs]

But in general, the US has tried to carve out the AI made parts of works which can't be copyrighted from the human made parts which can.

[Karis Craig]

And the difficulty is going to be whether it's possible or not is to kind of parse what did the AI generate versus what did the human author or user create.

[Waylon Wong]

Keras predicts this is only going to get harder as companies integrate AI directly into software we all use to write or draw or code.

[Emma Jacobs]

This summer, in the Canadian case, you'll have experts and lawyers all getting paid to dissect how Ankit Sani's Starry Night mashup got made and how much he.

[Waylon Wong]

Contributed, but trying to figure out what's eligible for copyright day to day. As the AI tools available also keep evolving, that's going to be much harder and really a moving target. This episode was produced by Julia Ricci with engineering by Kwesi Lee. It was fact checked by Sierra Juarez. Cake and Cannon is our show's editor and the indicator is a production of npr.

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