“A Recent Entrance to Paradise” (shown above) is an artwork which Steven Thaler claimed was “autonomously created by a computer algorithm” running on what he called the “Creativity Machine,” and in 2018 Thaler applied to register copyright in the work on the basis of his “ownership of the machine.” On February 14, 2022, the U.S. Copyright Office’s Review Board denied Thaler’s application, a decision covered previously in this Newsletter. The Copyright Office reasoned that only a human being could be an “author” for purposes of the U.S. Copyright Act and, therefore, a work created entirely by a non-human entity was ineligible for copyright protection. On August 18, 2023, U.S. District Judge Beryl Howell affirmed this decision.
The court began its review by stating that under the Administrative Procedure Act, the statute Thaler relied upon to challenge the Copyright Office’s determination, the court could not consider any evidence or argument that Thaler had not presented previously to the Copyright Office. Consequently, the court deemed irrelevant the extensive presentations made by Thaler regarding his relationship to the AI program and, consequently, to “A Recent Entrance to Paradise”. The court stated: “While plaintiff attempts to transform the issue presented here, by asserting new facts that he ‘provided instructions and directed his AI to create the Work,’ that ‘the AI is entirely controlled by [him],’ and that ‘the AI only operates at [his] direction,’ —implying that he played a controlling role in generating the work—these statements directly contradict the administrative record…. Plaintiff’s effort to update and modify the facts for judicial review on an APA claim is too late. On the record de-signed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straight-forward answer is the one given by the Register: No.”
Thaler’s 2018 copyright registration application anticipated the extensive use of AI technology today, and the wide-ranging discussions currently underway about how copyright protects underlying works incorporated by AI programs into new works, as well as those new works themselves. Both the Copyright Office and the district court analyzed the past jurisprudence relating to works created only partly by humans. These cases ranged from an 1884 U.S. Supreme Court case ruling that photography involved enough human input to support copyright protection to cases considering whether literary works based upon divine or other spiritual inspirations likewise involve human authorship. The district court even cited James Madison’s statement in The Federalist that patent and copyright protection were useful because “[t]he public good fully coincides in both cases with the claims of individuals.” Traditional copyright thinking as reflected in the U.S. Constitution and copy-right statutes presumes an individual “author” for whom copyright protections, and the concomitant economic rights, provide incentives for the time and efforts authorship entails. AI programs require no such incentives.
The court noted that Thaler made the case simple by stipulating that he had no direct role in the creation of “A Recent Entrance to Paradise”, and that members of Congress were requesting the Copyright Office to con-sider more complicated AI-related issues. This is now happening. On August 30, 2023, the Copyright Office announced that it is “conducting a study regarding the copyright issues raised by generative artificial intelligence (AI). This study will collect factual information and policy views relevant to copyright law and policy. The Office will use this information to analyze the current state of the law, identify unresolved issues, and evaluate potential areas for congressional action.” Written comments from members of the public are due on or before October 18, 2023.
