It has been litigated to death before the invention of LLMs. Also, the current opinion of the USCO, which is unlikely to change, is that humans must be the author of the Copyrighted work. The problem with the entire argument is both sides are trying to think like a programmer, not a laywer, but only lawyers should be trying to argue novel interpretations of the law.
I would love to see the opinion of a copyright lawyer that would be willing to bring an LLM output copyright case to the Supreme Court, their opinion must be absolutely wild.
This whole thing was most recently affirmed in the 9th Circuit case Naruto v. Slater, where a monkey used a photographer's camera to take a selfie, and the photographer claimed he owned the Copyright because it was his camera, and then attempted to extort the Wikimedia Foundation. Monkeys are clearly intelligent and actually alive (unlike LLMs) yet that still did not alter the opinion of the Judges based on the current interpretation of the Copyright Act (which clearly states only humans can hold Copyright) and all the decades of case law proceeding this case.
As for specifically GenAI, the case involving Théâtre D'opéra Spatial also moved in this exact direction: it is a Midjourney manufactured image that the prompt-giver attempted to Copyright, and the USCO rejected the application and the USCO Review Board also rejected it, however the prompt-giver has not elected to sue the USCO over this.
I would love to see the opinion of a copyright lawyer that would be willing to bring an LLM output copyright case to the Supreme Court, their opinion must be absolutely wild.
This whole thing was most recently affirmed in the 9th Circuit case Naruto v. Slater, where a monkey used a photographer's camera to take a selfie, and the photographer claimed he owned the Copyright because it was his camera, and then attempted to extort the Wikimedia Foundation. Monkeys are clearly intelligent and actually alive (unlike LLMs) yet that still did not alter the opinion of the Judges based on the current interpretation of the Copyright Act (which clearly states only humans can hold Copyright) and all the decades of case law proceeding this case.
As for specifically GenAI, the case involving Théâtre D'opéra Spatial also moved in this exact direction: it is a Midjourney manufactured image that the prompt-giver attempted to Copyright, and the USCO rejected the application and the USCO Review Board also rejected it, however the prompt-giver has not elected to sue the USCO over this.