Who Owns It? – AI Part I

By Mikayla Walsh and Christopher McHattie

Ownership, Authorship, Inventorship and Piano Rolls - The Intersection of Artificial Intelligence and Innovation

So, lines and lines and lines of code are being created by AI, solving problem after problem, but who owns it? In fact, does anyone own what artificial intelligence is generating, creating, or inventing? The AI explosion has raised the rather urgent question of who (if anyone, or anything), legally, owns AI generated output. From recent statements of policy and case law emerging from the Courts, the USPTO and the Copyright Office, it can be implied that as of now, the answer may very well be no one, or put another way, everyone.

Fundamentals of Copyright and Authorship

The exclusivity associated with copyrights and inventions is at the very core of our constitutional framework, designed to fuel innovation. Article I, Section 8, Clause 8 of the United States Constitution specifies that “[t]he Congress shall have the Power… [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.[1] 17 U.S.C. § 102 further elaborates to grant copyright protection to "original works of authorship." The interpretation of “authorship” has long been held to require a human creator. In 2018, the Court held in Naruto v. Slater that a monkey, who sought to assert copyright infringement of his “selfies,” lacked standing under the Copyright Act given that monkeys are not human.[2]

This interpretation was applied broadly, to not only animals, but to all “non-humans.” The Copyright Office has consistently maintained this broad exclusion, especially as it relates to artificial intelligence, stating that copyright “does not protect works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.”[3]

In Thaler v. Perlmutter, decided March 18, 2025, Thaler sought copyright registration of a picture titled “A Recent Entrance to Paradise” that had been made by a generative artificial intelligence named the “Creativity Machine.”[4]

The Copyright Office refused registration on the basis of a non-human author, and the United States Court of Appeals for the District of Columbia Circuit affirmed.[5] This precedent reaffirmed the human-authorship requirement, and the specific exclusion of AI as an inventor.

However, an important and unanswered question remained – what if the “author” provided the creative direction that formed the end product? The Court did not consider Dr. Thaler’s argument that he “is the work's author by virtue of making and using the Creativity Machine” because the argument had previously been waived before the agency.[6] So, what about creations and inventions that were made pursuant to a creative, human-generated prompt? Does the human become the author by nature of his making and using of AI? Since then, the Copyright Office has established that humans’ prompting of the AI outputs does not change the ultimate author from AI to the prompting human.[7] Rather, the Copyright Office has made the analogy that “prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output.”[8] A strong argument can be made that a human-made prompt be sufficiently creative to warrant copyright protection itself, however, the Copyright Office makes clear that as of now, the prompt’s AI generated response is unprotectable.

Fundamentals of Patents and Inventorship

Similarly, the inventorship requirements for a patent mimic the Copyright Office’s authorship requirements. 35 U.S.C. § 100(f) states that “[t]he term ‘inventor’ means the individual or, if a joint invention, the individuals collectively who invented or discovered the subject matter of the invention.” The USPTO and the Courts have interpreted “individual(s)” to mean that only human beings can be named as inventors on a patent application.

In 2022, the question arose, not surprisingly again raised by Dr. Thaler, as to whether an AI system could be listed as the inventor on a patent application. The Court in Thaler v. Vidal held that the use of the word “individual” in defining an inventor under 35 U.S.C. § 100(f) was limited to human beings, referring to Supreme Court rulings that when used in statutes, the word “individual” refers to human beings, unless Congressional intent proves otherwise.[9] As a result, and this time his DABUS system (the AI system created by Thaler for the purpose of generate patentable inventions), was not an individual as required by the Patent Act.[10]

Some food for thought – if the Thaler patent application was rejected on the grounds that AI cannot be an “inventor” pursuant to the Constitution, how many of the AI inventions are now being withheld from the public domain and maintained as trade secrets? How many patent applications with human-named inventors are actually attributable to AI? These pose interesting questions which we will undoubtedly see unfold before us in the future, as future legislation and existing laws and precedent around AI evolve and develop.

The Age of Artificial Intelligence Calls for Legislative Evolution

Inventors, authors, and creators generally – all are at risk of expending a lot of time and effort innovating, only to find out that unless they are careful, they may not own the fruits of their labor. Innovation left in the hands of artificial intelligence begs the question of who can be said to own the inventions, creations, and works of authorship that result from human-initiated ai prompts. While we are confident that humans’ approaches to this dilemma, just like AI, will learn and evolve, theoretically, the number of inventors and authors may begin to decline over time, with most of our “inventions” being created by “non-human” systems. Are we on the brink of a world where inventors and authors will go the way of the Rolodex®, as obsolete? We doubt it, and have suggestions!

So, the question is how the evolution eco-system, Congress, the Courts and the USPTO will adapt and conform to what appears to be new normal. AI and LLMs are becoming more and more involved in our day-to-day lives and how we execute our various jobs and professions. It seems counterintuitive to Congress’ power “[t]o promote the Progress of Science and useful Arts” that AI, perhaps the greatest accelerator of innovation and creativity, would be left without the protections afforded to “Authors and Inventors” by the U.S. Constitution.[11]

This legislative void raises an important consideration: if it is neither the Copyright Office nor the USPTO who has the wherewithal to recognize protections for AI creations, is it time for a new, and maybe separate framework for innovation protection? Perhaps instead of a reinterpretation of the existing law, trying to fit AI back into the USPTO and Copyright Office’s definition of inventor and author, a new set of protections (with concomitant elements and protections) or even perhaps a whole new agency that is tailored to this new age of AI?

As a hybrid of the USPTO and Copyright Office, the agency could recognize and advance the innovation resultant from the collaboration between humans and AI. Uniquely, this agency could establish a rights regime acknowledging a new category of creator: the collective human-AI team. In this framework, a prompter, while not the sole originator, might be recognized for initiating and directing the generative process, and be granted limited, shared, or attributed rights accordingly.

The protections afforded to innovative concepts are what fuel the incentive to innovate. As we stand on the brink of a creative revolution powered by algorithms and neural networks, the law is likely to evolve to ensure innovation is not stifled by outdated and limiting definitions of authorship and invention. Because as it currently stands, the question of what protections for AI generated content and to whom the protections are afforded, are none and no one. However, this isn’t unfamiliar territory.

Piano Rolls Prompted the Biggest Update to Music Copyright Law in Over 40 Years

This is of course reminiscent of “piano rolls,” yes, piano rolls. In the early 20th century, the legal status of piano rolls was a subject of debate, ultimately leading to changes in copyright law. The Supreme Court initially ruled in White-Smith Music Publishing Co. v. Apollo Co. that piano rolls were not copies of musical works, but rather mechanical reproductions.[12] This decision was later addressed by Congress in the 1909 Copyright Act, which recognized the right to make mechanical reproductions and established a compulsory licensing system for such reproductions.

More specifically, the Supreme Court ruled that piano rolls, which were perforated paper rolls used in player pianos, were not considered "copies" of the musical work (sheet music).[13] This was because the holes in the piano roll were not an intelligible musical notation for a human.[14]

Congress responded to the Supreme Court's decision with the 1909 Copyright Act which included a provision recognizing a "mechanical reproduction right" for musical works. This meant copyright owners could control the creation of mechanical reproductions like piano rolls as if they were “copies.” The 1909 Act also established a compulsory licensing system, allowing anyone to make mechanical reproductions (like piano rolls) without explicit permission from the copyright holder, provided they paid a statutorily set royalty fee.

This legal framework meant that while the piano roll itself could not be copyrighted (until sound recordings were added to the Copyright Act in 1972), making or distributing piano rolls of copyrighted musical works required permission or the payment of royalties. The implication of this is that if a musical work is in the public domain (no copyright), then making or distributing piano rolls of that work is permissible without royalties.[15]

What do Piano Rolls have to do with Artificial Intelligence? More than 100 years ago, player pianos and piano rolls were perceived as “unchartered territory” and our innovation eco-system had to “pivot’ to create a system that provided for innovation like piano rolls. As such, when “recordings” (records) became common, we, as an innovation eco-system, were prepared and knew what to do and how recordings of sheet music and performances were protected and provided for.

AI is the 21st Century’s Piano Roll.

Stay tuned for Part II.

References

[1] U.S. Const. art. I, § 8, cl. 8.

[2] Naruto v. Slater, 888 F.3d 418, 420 (9th Cir. 2018).

[3] 37 C.F.R. pt. 202 (2024).

[4] Thaler v. Perlmutter, 130 F.4th 1039, 1041 (D.C. Cir. 2025).

[5] Id.

[6] Id.

[7] 37 C.F.R. pt. 202 (2024).

[8] Id.

[9] Thaler v. Vidal, 43 F.4th 1207, 1211 (Fed. Cir. 2022).

[10] Id. at 1213.

[11] U.S. Const. art. I, § 8, cl. 8.

[12] White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1, 28 S. Ct. 319 (1908).

[13] Id.

[14] Id.

[15] Id.