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We recently wrote about Dr. Stephen Thaler’s challenge to the Copyright Office’s refusal to register copyright in “A Recent Entrance to Paradise,” in which he has asked a federal appellate court to grant him summary judgment on both copyrightability of Paradise, a work created by his artificial intelligence (AI) system DABUS, and his ownership of copyright in Paradise.

The Copyright Office has now had its opportunity to weigh in on these issues, in a cross-motion for summary judgment it filed in Dr. Thaler’s appeal this Tuesday.

In the cross-motion, the Office states it acted “reasonably and consistently with the law when it refused to extend copyright protection to a visual work that [Dr. Thaler] represented was created without any human involvement.” The Office’s motion argues “the human authorship requirement is a longstanding requirement of copyright law” and the Copyright Act “assumes that authors are humans.” It points to Supreme Court decisions from the 1800s suggesting “human creativity” is required for a work to be copyrightable, as well as appellate court decisions holding that works created by animals, divine spirits, and nature are not copyrightable. Noting that one of these latter decisions stated “that ‘if Congress and the President intended to take the extraordinary step of authorizing animals’ to sue, the statute would need to state so clearly,” the Office argues, “[c]opyright protection for works created entirely by machines would be even more extraordinary.”

The Copyright Office’s cross-motion also argues against finding Dr. Thaler to be the owner of copyright in Paradise under common law principles or the work-made-for-hire doctrine. It argues Dr. Thaler’s reliance on common law property ownership principles “is irrelevant” because they “involve physical rather than intangible property. It is a fundamental principle of intellectual property, confirmed in the Act, that ownership of a material object is distinct from ownership of intangible rights embodied in that object.” As for work-made-for-hire, the Office argues DABUS “is not a person, is not [Dr. Thaler’s] employee, and is not [Dr. Thaler’s] agent. The work made for hire doctrine does not apply here.” Indeed, it notes that the “argument that computers can be employees for copyright purposes is extraordinary and could have broad implications for employment and tax law. The Court should not construe the term ‘employee’ in a way that would disrupt other established areas of law, such as including inanimate machines in the definition of ‘employee.’”

Finally, the Copyright Office brushes aside the “policy arguments in favor of copyright protection for AI created works” in Dr. Thaler’s motion. It argues that “[r]egardless of [Dr. Thaler’s] own views, the Constitutional purpose of copyright is to incentivize humans to create expressive works. . . . Unlike humans, machines do not have rights of free expression, and do not need economic incentives to create and disseminate expressive content.” “In any event,” the Office concludes, “this is not the forum to resolve [Dr. Thaler’s] policy arguments.” Rather, “the Court here is limited to applying the law as it exists now, not as [Dr. Thaler] might wish it to be.”

The motion has yet to be decided. We’ll continue to bring you updates as the Paradise suit and other AI cases develop. 

This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.

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