Neither the US Constitution nor the US Copyright Act mandates ‘human authorship’ for copyright. Yet, the US Copyright Office (USCO) has come out strong in its requirement of the human element, denying registration to computer-generated work on that basis and even winning summary judgment in a federal case related to one such denial. Why then has the USCO just recently begun to seek public comment on this very issue? Because copyright is a malleable thing, and the ground upon which a ‘human’ precondition rests may be shifting.

Inventor’s Unsuccessful Copyright Registration Application

In late 2018, Dr Stephen Thaler filed a copyright application with the USCO for an artwork entitled A Recent Entrance to Paradise that he listed as “autonomously created by a computer algorithm running on a machine.” As creator and owner of that AI system known as the Creativity Machine, Thaler requested that he receive copyright in Paradise as a work made for hire. The answer Thaler received from the USCO was a resounding no.

The USCO denied Thaler’s Paradise application as it allegedly “lack[ed] the human authorship necessary to support a copyright claim”, and subsequent reconsideration requests were similarly denied. Despite several years of effort, Thaler was unable to pursued the USCO or the Copyright Office Review Board that an AI tool should be deemed an author “where it otherwise meets authorship criteria, with any copyright ownership vesting in the AI’s owner”.

Inventor’s Federal AI “Test Case”

In June 2022, Thaler filed suit against the USCO over its registration denial of his Creativity Machine creation. The Artificial Inventor Project was involved in filing the suit and describes it as one in a “series of pro bono legal test cases seeking intellectual property rights for AI-generated output in the absence of a traditional human inventor or author”. The Artificial Inventor Project states that these suits are meant “to promote dialogue about the social, economic, and legal impact of frontier technologies such as AI and to generate stakeholder guidance on the protectability of AI-generated output.”

Thaler’s complaint sets out in Doc. 1 that “the [USCO] denial creates a novel requirement for copyright registration that is contrary to the plain language of the Copyright Act (“Act”), contrary to the statutory purpose of the Act, and contrary to the Constitutional mandate to promote the progress of science.” The complaint’s single cause of action alleges violation of the Administrative Procedure Act that requires agencies such as the USCO to make “reasoned decision making” and “to reasonably explain to reviewing courts the bases for the actions they take and the conclusions they reach” (Doc. 24).

According to Thaler (Doc. 1), the USCO’s registration denial was “arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of Defendants’ statutory authority,” in violation of the APA. The complaint highlights the US Supreme Court’s historical willingness to “construe” the Copyright Act “in light of its basic purpose” and broaden its prevailing interpretation “[w]hen technological change has rendered its literal terms ambiguous” (quoting Twentieth Century Music Corp. v. Aiken) (Doc. 16).

Summary judgment motions were filed by Thaler and the USCO on a “single legal question” – “whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation” (Doc. 24). In a 15-page decision that issued in mid-August 2023, US District Judge Beryl A. Howell answered that query in the negative and found Paradise to be “a work created absent any human involvement” for which the USCO rightly denied registration.

According to the Artificial Inventor site, an appeal of this ruling to the DC Circuit Court of Appeals is pending.

Thaler Precedent Impact – Registration of Théâtre D’Opéra Spatial Denied

Just over a fortnight after the DC District Court’s Thaler opinion, it was cited by the USCO in its denial of a second reconsideration request related to a work created with the use of Midjourney, Théâtre D’opéra Spatial.

Courts have interpreted the statutory phrase “works of authorship” to require human creation of the work. See Thaler v. Perlmutter, No. 22-cv-1564, 2023 WL 5333236, at *4 (D.D.C. Aug. 18, 2023) (stating that “human authorship is a bedrock requirement of copyright” in affirming the Office’s refusal to register a work “autonomously” created by AI). For this reason, courts have uniformly rejected attempts to protect the creations of non-humans through copyright.

Potential Shift in ‘Human Authorship’ Requirement

The USCO recently issued a Notice of Inquiry and request for comments that touches on many issues related to AI, including human authorship and copyrightability. The inquiry ranges from asking whether “there [are] circumstances when a human using a generative 
AI system should be considered the ‘author’ of material produced by the system” to whether “any revisions to the Copyright Act [are] necessary to clarify the human authorship requirement or to provide additional standards to determine when content including AI-generated material is subject to copyright protection”. The USCO will be receiving comments on these and the remainder of questions in the NOI until mid-October 2023 and replies to comments until mid-November 2023.)

 Thus, despite the current precedent created by Thaler, it would seem from these USCO queries that the US copyright law’s “bedrock” element of ‘human authorship’ may be subject to change. What form that change will take is anyone’s guess at this point.

Watch for further discussion of the global issues surrounding AI, art and the law in an upcoming collaborative article in the Art Antiquity and Law Journal with IAL Assistant Director Emily Gould later this year.

Image Credits:

DABUS, Dr Thaler, A Recent Entrance to Paradise, 2012, public domain, Wikimedia Commons – File:A Recent Entrance to Paradise.jpg – Wikimedia Commons

Midjourney, Jason M. Allen, Théâtre D’opéra Spatial, 2022, public domain, Wikimedia Commons – File:Théâtre D’opéra Spatial.jpg – Wikimedia Commons