Copyright Developments

In this case, computer scientist Stephen Thaler created a generative AI he named the “Creativity Machine,” which in turn generated the below image, titled “A Recent Entrance to Paradise” (the “Work”). Thaler applied to register the Work, listing the Creativity Machine as its sole author and himself as the Work’s owner.

The Copyright Office refused to register the Work on the ground that only works authored by human beings are eligible for copyright protection. In two round of administrative reconsideration requests, Thaler confirmed that the Work was “autonomously generated by an AI” and made constitutional, statutory and policy arguments against the human authorship requirement.

After again being refused registration, Thaler appealed to the D.C. District Court, reiterating his earlier arguments but also claiming for the first time that the Work was copyrightable because Thaler (a human being) provided instructions to and directed his AI. The district court sided with the Copyright Office because human authorship is a “bedrock requirement of copyright.” The district court further held that Thaler had waived his arguments for the Work’s copyrightability based on Thaler’s creation and operation of the Creativity Machine because he failed to raise them before the Copyright Office. Thaler appealed.

The D.C. Circuit Court readily affirmed the Copyright Office’s determination based on the text of the Copyright Act, the Copyright Office’s guidance, and Thaler’s unwaived arguments.

The Circuit Court began by enumerating examples of Copyright Act provisions that make sense only when applied to humans: ownership requiring the capacity to own property, duration tied to lifespan, inheritance provisions, signature requirements, domiciles and intentionality. Although none of these provisions stated a necessary condition for authorship – after all, nineteenth-century women could author copyrightable works in which coverture laws prohibited them from owning copyrights – the Court found they were best read together as making humanity a prerequisite for authorship.

The Court reinforced its reading by citing to the Copyright Office’s longstanding guidance requiring human authorship and characterizing computers as “inert” machines.

Thaler’s attempt to characterize his AI-authored work as one made for hire met with no success, despite his correctly pointing out that, under the Copyright Act’s work-for-hire provision, non-human corporations and governments can be “considered” authors.  The crucial word, the Court held, was “considered” because the work-for-hire provision does not say that such non-human entities “are” authors, merely that they are “considered” authors. An initial human author is still required, even if the author is legally a non-human entity.

Since Thaler had, before the Copyright Office, consistently affirmed that AI was the Work’s sole author, his only argument before the Court was that a work autonomously generated by a machine could be copyrighted. This, the Court held, was clearly foreclosed by the Copyright Act.

The question of whether Thaler himself could be considered the Work’s author because he had made and used the Creativity Machine AI – a more broadly applicable question, since most humans would seek to register AI-generated works in their own names – was not even considered by the Court since Thaler had not preserved it for appeal.

A better test case for that question is currently pending in the Colorado District Court and involves the below AI-generated artwork Théâtre D’Opéra Spatial (which was also denied registration for lack of human authorship). See Allen v. Perlmutter, D. Colo. Case No. 1:24-cv-2665. There, the human involved, Jason Allen, claimed that he is the author of the work given the hundreds of prompts he had to enter to generate the artwork. Whether Allen’s position will find more traction with a court than it did with the Copyright Office remains to be seen.

For now, the Copyright Office has already made clear that works made by or with AI may be registrable depending on the circumstances. Thus far, copyright protection has not extended to any material actually generated by an AI but could extend to a human author’s contributions to a work that has some elements that are AI generated. For example, the Copyright Office allowed a human author to register the text in, as well as the selection and arrangement of, a comic book that contained AI-generated images. However, the images themselves were held to be not copyrightable because they lacked a human author.  See Copyright Office Letter dated February 21, 2023, re Zarya of the Dawn (Registration # VAu001480196), available here.

If you have any questions about this article or any other copyright issue, contact Dasha Chestukhin or your CLL attorney.