Artificial intelligence and copyright: the Invoke decision and "A Single Piece of American Cheese", a landmark decision by the U.S. Copyright Office?

In a decision dated 30 January 2025, the U.S. Copyright Office (USCO) granted copyright registration to the digital graphic composition "A Single Piece of American Cheese", a creation produced through a collaboration between human creativity and artificial intelligence (AI), specifically using the "image retouching" or "Inpainting" technology of Invoke AI, Inc. This decision is a real step forward in the legal recognition of AI-assisted creations in the United States. 

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Invoke AI, Inc. and Kent Keirsey

US-based Invoke AI, Inc. led by CEO Kent Keirsey, a military veteran and seasoned entrepreneur, operates a generative artificial intelligence platform that enables companies to securely generate digital creations from their own content. Invoke AI is a company at the forefront of the artistic AI ecosystem, defending the right of creators to control and monetise their work. 

The Copyright Office's registration of "A Single Piece of American Cheese" not only validates Invoke's technology, but also reinforces its reputation as a pioneer in the implementation of secure Generative AI that is mindful of its users' intellectual property rights.

The question of the substantial human contribution 

"A Single Piece of American Cheese" depicts a woman's face in a mosaic of bright, fragmented colours, inspired by stained-glass windows and imbued with a mystical touch thanks to the prominent third eye on her forehead. The originality of this creation is accentuated by the representation of hair styled like spaghetti, topped with a slice of melted cheese. Complex patterns in shades of blue and violet surround the figure, reinforcing the stained glass aesthetic and enhancing the surreal, playful essence of the work.

To generate this work Invoke used an SDXL template AI model called CustomXL to generate three initial images, selecting one of them to work on afterwards. Using a technique called 'inpainting' (selectively regenerating parts of an image while preserving the rest), Invoke iteratively enhanced and modified the chosen image 35 times. This process introduced distinctive elements such as a third eye, melting cheese, upper body and even internal organs, gradually transforming the image into its final surreal and whimsical composition.

Keirsey's active role in the creative process was decisive in his copyright application. Invoke first applied for a copyright for 'A Single Piece of American Cheese' in August 2024 and refused, with the USCO stating that it "lacked the human authorship necessary to support a copyright claim". Invoke then provided further evidence, including a time-lapse video of the creation of the image and an explanation of how Keirsey had been involved in the creation process. The USCO then gave its approval on 30 January 2025. It seems that it was the abundance of evidence of human intervention provided by Invoke that enabled this work to be protected by US copyright.

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As a reminder, the decision in Thaler v Perlmutter (United States District Court for the District of Columbia, 2023) established that achievements generated entirely by artificial intelligence could not be considered as creations protectable by intellectual property. This position was reaffirmed by the USCO guidelines of 29 January 2025, which exclude from copyright protection content that does not make a sufficiently human contribution.

In its latest decision, the USCO based its ruling on the principle that copyright protection applies to creations that reflect a "selection, coordination and arrangement" resulting from human creative input. In this case, the USCO seems to have decided that, although the work was initially generated by an AI of the SDXL type, the human artist then used the inpainting technique, selecting the parts of the work to be modified and then modifying them substantially according to elements originating from the will of the artist. This human intervention was deemed sufficient to satisfy the creativity criteria required for copyright recognition.

This decision marks a significant departure from previous refusals to register, notably those concerning the famous "Space Opera Theatre" and "Zarya of the Dawn", where the absence of a significant human contribution led to the rejection of the applications for protection. The same was true of 'A Recent Entrance to Paradise' (USCO Review Board, 2022), which was rejected for lack of identifiable human creativity.

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The "Rose Enigma" case (2023) was also very restrictive, with the USCO granting partial protection to elements created directly by the artist by hand, thereby recognising substantial human involvement. However, portions of the work generated by AI were excluded from protection on the grounds that they did not result from an autonomous human creative effort.

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The "A Single Piece of American Cheese" decision therefore marks a real evolution in this line of case law, by recognising that AI tools can be used as instruments of creation, subject to demonstrable human supervision. It is therefore now recommended that companies methodically organise the collection of evidence throughout the creative process, either by video-recording the stages in the creation process or, more simply, by saving the prompts and outputs, which can be automatically traced and time-stamped by digital tools such as those offered by the French start-up BlockchainYourIP.

This issue is all the more crucial in the United States, where registration with the U.S. Copyright Office (USCO) is a mandatory prerequisite for any legal action for copyright infringement, as well as for any claim for damages based on these rights (17 U.S. Code § 412). It should be remembered that this American system differs markedly from the French system, where copyright arises automatically from the mere fact of creation, without any prior filing or registration formality, as we pointed out at a recent conference on creation and AI here as part of the AI Summit on 11 February 2025.

What are the economic stakes?

The USCO's decision could have significant economic consequences. By affirming copyright protection for works assisted by generative AI with human input, it could stimulate investment and innovation in the creative industries. Artists and businesses could increasingly adopt AI tools, confident that their contributions will be protected, potentially expanding the market for digital art and related services. 

Beyond the digital art world, the decision could have repercussions in the AI sector. If copyright protection restricts the use of AI results as training data, developers could face higher costs or restricted access to resources, which could slow technological progress. Conversely, the decision could inspire new business models, such as licensing frameworks for AI-assisted/generated content, reshaping the intellectual property landscape on a global scale.

This decision therefore raises as many questions as it answers. What are the limits to the contribution of generative AI to the work? How will the courts define 'sufficient' human contribution in future disputes? What will be the long-term impact on creative markets and the development of AI?