Today, the Supreme Court meets in conference to decide whether to grant (or reject) pending cert petitions.
Among them is the petition in Thaler v. Perlmutter. It asks:
For a variety of reasons, I now believe the chances are very high the Supreme Court agrees to hearThaler‘s case. To briefly summarize my reasons:
- Unlike in Thaler v. Vidal, involving the same Stephen Thaler but raising a question of AI inventorship, the Supreme Court asked the Solicitor General to reply to Thaler’s cert petition here in Thaler v. Perlmutter. It only takes one Justice to ask for a reply. But at least it signaled that Thaler v. Perlmutter would not be summarily denied.
- This case involves a fundamental question of copyright law that has national importance for industries and individuals alike. (Although one could say the same for inventorship, the rapid deployment of AI in the creative industries and “vibe coding” in the software industry, as well as among many individuals, might make this case more pressing, especially 3 years after Thaler v. Vidal was denied when AI has rapidly developed and gained mass adoption.)
- The Supreme Court has a lot of room in the docket: only 3 cases have been granted cert.
- Phyllis Schlafly Eagles filed an amicus brief in support of the Supreme Court hearing the case. The last time the Schlafly group supported a cert petition in a copyright case was Eldred v. Aschcroft, which the Supreme Court—surprisingly—agreed to hear.
- The U.S. Copyright Office’s position on “human authorship” shown by “traditional elements of authorship” raises serious questions.
You can read my full analysis of these 5 reasons in my prior post:
Today, let me add one more reason:
6. The Patent Code is a lot clearer than the copyright act
The D.C. Circuit relied solely on statutory interpretation of “inventor” (in Vidal) and “author” (in Perlmutter) in holding that both “inventor” and “author” require a human.
But the text of the Patent Code is a lot clearer (or cleaner) than the Copyright Act on this issue. Most notably, the Patent Code lacks a work-made-for-hire provision that the Copyright Act has in treating an employer, including corporations (i.e., a non-human), as the “author” of works created by employees within the scope of their employment. The WMFH provision explains how movie studios, which are non-humans, can be “authors” instead of the directors of movies.
Plus, as Thaler’s reply cogently points out: the Copyright Act allows state governments to be authors. The Copyright Act also expressly uses the phrase “natural person,” but only in the context of an anonymous work: “An “anonymous work” is a work on the copies or phonorecords of which no natural person is identified as author.” Had Congress intended to limit “authors” to “natural persons” alone, it could have said so in the Copyright Act. It probably didn’t because of the work-made-for-hire provision (section 201) that “consider[s]” “the employer or other person for who the work was prepared” “the author.”
The Solicitor General relies on the D.C. Circuit’s attempt to distinguish work-made-for-hire “authorship” in corporate employers rather than any human authors as not undermining the government’s argument that “authors” in the Copyright Act must be interpreted to apply only to “human authors”:
Perhaps the D.C. Circuit’s analysis of “considered the author” will be persuasive enough to allay the concerns about treating a corporation as the “author” rather than any human.
But the attempt to distinguish the work-made-for-hire author is, at least, not as clean or straightforward as the D.C. Circuit’s reasoning for the Patent Code, which repeatedly refers to inventors as “individuals,” a term that has been accepted by the Supreme Court to refer to humans, or natural persons.
As the D.C. Circuit itself explained in Vidal:
This clarity of the Patent Code in referring to “individuals” who are “inventors” is lacking in the Copyright Act. I suspect that difference was one reason the Perlmutter cert petition was not summarily rejected as theVidal cert petition was.
The bottom line is that the Copyright Act and the Copyright Office’s interpretation of it raise some serious questions that are not as easily dispatched as in Vidal.
The Copyright Act quite clearly deems as “authors” some entities that are not humans. WMFH does not transfer the ownership of the copyright from employee to employer. Instead, it deems the employer, including corporations, as the “authors” ab initio.
We won’t know whether the Supreme Court has made a decision on the Thaler v. Perlmutter cert petition until Monday morning. Stay tuned.
This clarity of the Patent Code in referring to “individuals” who are “inventors” is lacking in the Copyright Act. I suspect that difference was one reason the Perlmutter cert petition was not summarily rejected as the Vidal cert petition was.
The bottom line is that the Copyright Act and the Copyright Office’s interpretation of it raise some serious questions that are not as easily dispatched as in Vidal.
The Copyright Act quite clearly deems as “authors” some entities that are not humans. WMFH does not transfer the ownership of the copyright from employee to employer. Instead, it deems the employer, including corporations, as the “authors” ab initio.
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See also my Amicus Brief in Allen v. Perlmutter.