In a decision that surprised no one, the D.C. Circuit affirmed the decision of the district court, which upheld the Copyright Office’s denial of the registration for a visual image that Stephen Thaler asserted was created autonomously through his AI called the Creativity Machine. Thaler’s application for registration listed the AI as the sole author. Thaler’s attorney shifted that position during litigation, trying to allege some human involvement before the courts below.
As the D.C. Circuit described: “In addition, he claimed for the first time that the work is copyrightable because a human—Dr. Thaler— ‘provided instructions and directed his AI[.]’ J.A. 113. Because this was a new argument not made to the Copyright Office, the court held that Thaler waived it.
- D.C. Circuit’s decision was based on the Copyright Act, not the Copyright Clause
We affirm the denial of Dr. Thaler’s copyright application. The Creativity Machine cannot be the recognized author of a copyrighted work because the Copyright Act of 1976 requires all eligible work to be authored in the first instance by a human being. Given that holding, we need not address the Copyright Office’s argument that the Constitution itself requires human authorship of all copyrighted material. Nor do we reach Dr. Thaler’s argument that he is the work’s author by virtue of making and using the Creativity Machine because that argument was waived before the agency.
2. D.C. Circuit distinguished AI autonomously created works from works in which there is alleged some human contributions
To be sure, the Copyright Office has rejected some copyright applications based on the human-authorship requirement even when a human being is listed as the author. See Copyright Office, Re: Zarya of the Dawn (Registration # VAu001480196) (Feb. 21, 2023), https://perma.cc/AD86- WGPM (denying copyright registration for a comic book’s images made with generative artificial intelligence).
Some have disagreed with these decisions. See Motion Picture Association, Comment Letter on Artificial Intelligence and Copyright at 5 (Oct. 30, 2023), https://perma.cc/9W9X-3EZE (This “very broad definition of ‘generative AI’ has the potential to sweep in technologies that are not new and that members use to assist creators in making motion pictures.”); 2 W. PATRY, COPYRIGHT § 3:60.52 (2024); Legal Professors Amicus Br. 36- 37 (“The U.S. Copyright Office guidelines are somewhat paradoxical: human contributions must be demonstrated within the creative works generated by AI.”).
Those line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case. That is because Dr. Thaler listed the Creativity Machine as the sole author of the work before us, and it is undeniably a machine, not a human being.
Dr. Thaler, in other words, argues only for the copyrightability of a work authored exclusively by artificial intelligence. Contrast Rearden LLC v. Walt Disney Co., 293 F. Supp. 3d 963 (N.D. Cal. 2018) (holding that companies may copyright work made with motion capture software).
My take: I gave some of my reactions to Kyle Jahner of Bloomberg Law for his article.
Opinion below: