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We’ve previously written here and here about Dr. Stephen Thaler’s efforts to register copyright in A Recent Entrance to Paradise, a work created by his artificial intelligence (AI) system DABUS. In a motion for summary judgment filed in January, Dr. Thaler argued Paradise was a copyrightable work. The U.S. Copyright Office filed a cross-motion for summary judgment in February, maintaining human authorship is required for a work to be copyrightable. Last week, the U.S. District Court for the District of Columbia sided with the Copyright Office, concluding that since Paradise is an “image autonomously generated by [Dr. Thaler’s] computer system,” it “was never eligible for copyright.”

In so ruling, the court agreed with the Copyright Office’s arguments that “United States copyright law protects only works of human creation.” While acknowledging that “[c]opyright is designed to adapt with the times,” the court found that “[u]nderlying that adaptability . . . has been a consistent understanding that human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into media.” Using the oft-cited analogy to copyright in photographs from cameras—a question of first impression nearly 140 years ago—the court noted that “[h]uman involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work [photographs] fell within the bounds of copyright. Copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand .... Human authorship is a bedrock requirement of copyright.”

What about the Copyright Act’s omission of a definition for “the critical word ‘author’”? Dr. Thaler used that omission to argue “authors” under the Act need not be human. However, focusing on the dictionary definition of “author” as “one that is the source of some form of intellectual or creative work,” the court concluded the Act “requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor,” and that such originator must be human, calling “[t]he issue of whether non-human sentient beings may be covered by ‘person’ in the Copyright Act . . . only ‘fun conjecture for academics.’”

To support this conclusion, the court pointed to the Copyright Act’s foundation in the Constitution, meant to incentivize creation, and concluded that “[n]on-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.” It also relied on the fact that the current Copyright Act’s precursor “explicitly provided that only a ‘person’ could ‘secure copyright for his work’ under the Act.... There is absolutely no indication that Congress intended to effect any change to this longstanding requirement with the modern incarnation of the copyright law.”

To its credit, the court acknowledged that:

[u]ndoubtedly, 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 be best used to incentivize creative works involving AI, and more.

But owing to the sole question on appeal in Dr. Thaler’s case—whether a work generated autonomously by a computer system is eligible for copyright—“[t]his case is not so complex.” Rather, “[i]n the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the [Copyright Office]: No.”

Dr. Thaler has reportedly indicated he will not appeal the court’s decision. But the issue of whether AI-created works are copyrightable when there is some human involvement—such as a user directing the AI to create a particular type of work based off certain prompts—is not going away anytime soon. The autonomous creation at issue in Paradise meant no human authorship whatsoever. But when a human is involved in the process—making use of AI more akin to taking a photograph with a camera—copyrightability of the resulting work will still be an issue for determination. As we’ve written about here, Congress itself is grappling with the issue. In October 2022, members of the US Senate wrote to the heads of the USPTO and Register of Copyrights acknowledging that under current law AI generated works are not eligible for protection but asking “what the law should be in the future. In other words, we are considering what changes, if any, may need to be made to our intellectual property laws in order to incentivize future AI related innovations and creations.” Simply put, AI is not going away, and either US copyright law or its application will have to adjust accordingly.

We’ll continue to bring you updates as 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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