Judge Beryl A. Howell agreed with the Copyright Office’s ruling that the autonomously generated AI work “A Recent Entrance to Paradise” does not satisfy the requirement of human authorship, required for a work to qualify for copyright in the United States under the Copyright Act.
The work was created by Stephen Thaler’s Creativity Machine, and the application for registration of copyright stated that it was autonomously generated, with no human contributor. Thaler sought to be named the owner of the copyright under the work-made-for-hire doctrine. Although Thaler tried to raise a new argument in the district court that he contributed to the creation of the work, the court ruled the new argument was improper because it was not in the administrative record, or ever argued in the Copyright Office.
Judge Howell held, “United States copyright law protects only works of human creation.” The court viewed this requirement as a part of the Copyright Act: “By its plain text, the 1976 Act thus requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor.”
According to Judge Howell, this interpretation is consistent with “centuries of settled understanding,” tracing back to the framing of the Copyright Clause.
As James Madison explained, “[t]he utility of this power will scarcely be questioned,” for “[t]he public good fully coincides in both cases [of copyright and patent] with the claims of individuals.” THE FEDERALIST NO. 43 (James Madison). At the founding, both copyright and patent were conceived of as forms of property that the government was established to protect, and it was understood that recognizing exclusive rights in that property would further the public good by incentivizing individuals to create and invent. The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.
Judge Howell discussed the Supreme Court’s precedents:
As already noted, in Sarony, the Court’s
recognition of the copyrightability of a photograph rested on the fact that the human creator, not
the camera, conceived of and designed the image and then used the camera to capture the image.
See Sarony, 111 U.S. at 60. The photograph was “the product of [the photographer’s] intellectual invention,” and given “the nature of authorship,” was deemed “an original work of art . . . of which [the photographer] is the author.” Id. at 60–61. Similarly, in Mazer v. Stein, the Court delineated a prerequisite for copyrightability to be that a work “must be original, that is, the author’s tangible expression of his ideas.” 347 U.S. 201, 214 (1954). Goldstein v. California, too, defines “author” as “an ‘originator,’ ‘he to whom anything owes its origin,’” 412 U.S. at 561 (quoting Sarony, 111 U.S. at 58). In all these cases, authorship centers on acts of human creativity.
Judge Howell recognized that AI will raise challenging questions in the future:
Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt
challenging questions regarding how much human input is necessary to qualify the user of an AI
system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more. See, e.g., Letter from Senators Thom Tillis and Chris Coons to Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the U.S.
Patent and Trademark Office, and Shira Perlmutter, Register of Copyrights and Director of the
U.S. Copyright Office (Oct. 27, 2022), https://www.copyright.gov/laws/hearings/Letter-toUSPTO-USCO-on-National-Commission-on-AI-1.pdf (requesting that the United States Patent
and Trademark Office and the United States Copyright Office “jointly establish a national commission on AI” to assess, among other topics, how intellectual property law may best “incentivize future AI related innovations and creations”).
But Judge Howell said Thaler’s case was an easy case that didn’t even involve a claim that a human was involved in creating the work.
Why did Thaler switch strategies?
The court rejected Thaler’s attempt to argue, for the first time, that he contributed to the AI’s generation of the work, after disclaiming any involvement in the creation before the Copyright Office.
This appears to be a sign of weakness in Thaler’s original position and an attempt to bolster his argument, albeit belatedly.
But the court was having none of it: “In pursuing these arguments, plaintiff elaborates on his development, use, ownership, and prompting of the AI generating software in the so-called “Creativity Machine,” implying a level of human involvement in this case entirely absent in the administrative record. As detailed, supra, in Part I, plaintiff consistently represented to the
Register that the AI system generated the work “autonomously” and that he played no role in its creation, see Application at 2, and judicial review of the Register’s final decision must be based on those same facts.”