Written by: Tanner Murphy

Last week, in a decision that was largely expected, the U.S. District Court for the District of Columbia sided with the United States Copyright Office, ruling that works generated entirely by artificial intelligence absent human involvement are not eligible for copyright protection under U.S. law.

In November 2018, Dr. Steven Thaler filed an application with the United States Copyright Office to register the work, “A Recent Entrance to Paradise.” While Thaler listed himself as the owner of the work, he identified the author as “Creativity Machine”, an artificial intelligence system capable of producing images.

A Recent Entrance to Paradise

The USCO refused to register the work, citing a lack of human authorship. Dr. Thaler filed additional requests for reconsideration admitting that the work lacked traditional human authorship but arguing that the human authorship requirement was unsupported by U.S. law. Despite Dr. Thaler’s arguments, the USCO again refused to register the work based on its lack of human authorship. Dr. Thaler filed suit against the USCO in federal court, arguing that the agency’s actions in refusing to register “A Recent Entrance to Paradise” were arbitrary and capricious and that the refusal to register the copyright in the work should be set aside. Accordingly, the U.S. District Court for the District of Columbia was tasked with answering the question of whether a work generated entirely by an artificial intelligence system, absent human involvement, should be eligible for copyright protection.

United States copyright law provides that copyright protection subsists in original works of authorship fixed in any tangible medium of expression.1 While “authorship” is not statutorily defined, nearly a century of case law has established that “human authorship is a bedrock requirement for copyright.”2 In its March 2023 Guidance Letter, the USCO stated, “it is well-established that copyright can protect only material that is the product of human creativity. Most fundamentally, the term ‘author,’ excludes non-humans.”3

The human authorship requirement finds its roots in the Constitutional underpinnings of the U.S. Copyright Act. The Constitution enables the enactment of copyright law by granting Congress the authority to “promote the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their respective writings and discoveries.”4 Accordingly, copyright law derives from the overarching premise that it serves the public good to incentivize humans to create. “The act of human creation was central to American copyright from its very inception.”5 And, as the court noted in Thaler’s case, “non-human actors need no incentivization.”6

As time and technological innovation have marched on, courts have recognized as copyrightable certain works that may not derive solely from a human author. In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court held that photographs amounted to copyrightable works despite issuing from a mechanical device that simply reproduced an image of what was in front of the device.7 The human element involved in creating the work remained critical to the Court’s decision: where the photographer produced the photograph “entirely from his own original mental conception…arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression…we think, [the] photograph to be an original work of art, of which plaintiff is the author, and of a class of inventions for which the constitution intended that congress should secure to him the exclusive right to use, publish, and sell.”8

Accordingly, it was no surprise that the court sided with the Copyright Office in denying Dr. Thaler’s application. The application itself identified the Creativity Machine as the author of the work and specified that the work was “created autonomously by a machine.”  Dr. Thaler simply asked the court to apply years of well-settled law to undisputed facts. He unambiguously admitted that a “Recent Entrance to Paradise” came to be not through his creative ingenuity, but through a computer. His decision to list the Creativity Machine as the author and admit that the Machine created the work – likely an intentional one – is why the court was able to smoothly deny copyright protection. The profoundly more complex question has yet to be answered: to what extent can authors use AI as tool to create. In Sarony, the Court addressed the camera as a medium of authorship. Is artificial intelligence a new lens through which authors create? While the denouement of Dr. Thaler’s transparency as to the Creativity Machine being the work’s sole originator was a rejected application, one can imagine the outcome had he taken a different approach: “my algorithm is my camera.”

As advances in artificial intelligence continue to proliferate so will works created by those systems. In the near future, courts will be forced to grapple with the question of authorship yet again. The question will not distill down to whether authors may use artificial intelligence to create works, but to what extent they may use artificial intelligence as tool. A plethora of new case law is on the horizon.

[1] 17 U.S.C. 102(a)

[2] Thaler v. Perlmutter, No. 22-1564, 2023 WL 5333236, at *8 (D.C. 2023).

[3] U.S. Copyright Office, Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence (2023).

[4] U.S. Const. art. 1, cl. 8.

[5] Thaler, 2023 WL 5333236, at *10

[6] Id.

[7] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884).

[8] Id. at 60.

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