Thaler, Copyright Office Fight Over Human-Authorship Requirement for AI-Created Artwork Continues

“A Recent Entrance to Paradise”

On April 10, Dr. Stephen Thaler filed a reply brief at the U.S. Court of Appeals for the D.C. Circuit, continuing the artificial intelligence (AI) technologist’s legal challenge to the U.S. Copyright Office’s refusal to register copyright to an artwork generated by Thaler’s Creativity Machine. The reply brief argues that there is no human authorship requirement under the U.S. Copyright Act preventing Thaler from claiming copyright in the AI-generated work, and that standard principles of property law enables ownership of the work to vest in Thaler, who created the AI system at issue in the case.

Thaler, who has also pursued patent rights for inventions created by a different AI system, first appealed the U.S. Copyright Office’s refusal to register the copyright to “A Recent Entrance to Paradise” in June 2022. In an opinion issued in August 2023, U.S. District Judge Beryl Howell of the U.S. District Court for the District of Columbia affirmed the agency’s decision, finding that “[h]uman authorship is a bedrock requirement of copyright.”

Courts Can Resolve Significant Ambiguities in Copyright Act Caused by Tech Advances

In his appellant’s opening brief filed with the D.C. Circuit this January, Thaler contended that the Copyright Office had no support for the agency’s view that original works of authorship have a natural persons requirement. Arguing that the Copyright Office “employ[ed] smoke and mirrors to attempt to obfuscate plain language,” Thaler’s opening brief pointed out that “authors are often, and uncontroversially, not human” in the context of the work for hire doctrine, under which copyright is often assigned to a non-human corporate entity. In contrast to the agency’s view, Thaler’s brief points to rulings by the U.S. Supreme Court acknowledging that technological advances can create significant ambiguities in the Copyright Act, a principle most recently reiterated in Google v. Oracle (2021).

In early March, the U.S. Copyright Office appellees, including Shira Perlmutter, Register of Copyrights, filed a response brief  including several provisions throughout the Copyright Act that arguably require a human author. The Office argued that the Act’s transfer and license provisions, which require that copyright owners be able to convey rights in a signed writing, as well as termination rights, which descend upon death to the widow or other heirs of a deceased copyright owner, both support the human-authorship requirement.

Provisions cited by Thaler regarding copyright duration for anonymous and pseudonymous authors, which exist for a set period regardless of the author’s lifespan, only established that the human author need not be identified, the Copyright Office contended. Further, the Office argued that the proper operation of the work for hire doctrine required that a human employee create the work of authorship, with the assignee corporation only being “considered the author” under the relevant statute. The Office also cited a century of U.S. Supreme Court rulings on authorship dating back to Burrow-Giles Lithographic v. Sarony (1884), along with Ninth Circuit rulings Urantia Foundation v. Maaherra (1997) and Naruto v. Slater (2018), that allegedly supported the human-authorship requirement.

Traditional Property Ownership Principles Allow Copyright to Vest in Thaler

Thaler’s reply brief filed last week disputes that the work for hire doctrine requires a human employee, calling the Copyright Office’s argument “a distortion of statutory language and existing case law.” The Copyright Act’s definition of “employee” is not limited to individuals having the capacity to enter into agreements, and appellate rulings like the Second Circuit’s decision in Horror Inc. v. Miller (2021) have resisted attempts to import definitions of that term from U.S. labor code. Entitlements to copyright protection without a human author have been recognized by both the Office and U.S. federal courts, Thaler contends, citing to the Second Circuit’s 2013 ruling in Marvel Characters, Inc. v. Kirby and the Ninth Circuit’s 2003 ruling in Warren v. Fox Family Worldwide, Inc.

The copyright to “A Recent Entrance to Paradise” should vest in Thaler, the owner and programmer of the Creativity Machine system generating the work, under the “fruit of the tree” doctrine recognized in traditional property law, the reply brief argues. If the D.C. Circuit disagrees with the Copyright Office and finds that the artwork exists as a copyrightable property, Thaler maintains that the natural operation of law would transfer ownership of the work to himself. The Office’s response brief had asserted that this doctrine would be preempted by the Copyright Act, but Dr. Thaler notes that the Act specifically provides for copyright transfers “by operation of law” at 17 U.S.C. § 204(a).

Finally, if the Creativity Machine cannot be considered an author or employee, Dr. Thaler’s reply brief argues that the AI system must be a mere tool used to create copyrightable works. Under Burrow-Giles Lithographic, which defined “author” as the one “to whom anything owes its origin; originator; maker…”, Thaler qualifies as the artwork’s author as he originated the AI system creating the work. Had the Supreme Court in Burrow-Giles Lithographic taken a hyper-literal approach to the definition of “Writings” in the Copyright Act, thus excluding copyright protection for the photograph of Oscar Wilde at issue in that case, it would have resulted in a wide swath of today’s creative activities being economically unviable for lack of copyright protection, Thaler asserts.