No Copyright in AI-Created Works, Says Copyright Office

This is the AI-generated art involved.


Copyright Review Board Decision (Re: Reconsideration of Second Request for Registration Refuse to Register a Recent Entry to Paradise(Last week)

Thaler submitted a November 3rd 2018 application to register the Copyright Claim in the Work. Thaler was listed as the claimant along with a transfer declaration: Thaler owns the machine. Thaler submitted a note to the Office in which he stated that the Work was created “autonomously by a computer algorithm running at a machine”, and that he wanted to “register this computer-generated work to be used for hire to Creativity Machine’s owner.” …

[C]Opyright law protects only “the fruits intellectual labor that are founded in the creative power of the [human] mind.” U.S. Copyright Office Compendium Third Edition of U.S. Copyright Office Practices § 306 (quoting Cases involving Trademarks (1879)); See also Compendium (Third) § 313.2 (the Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human author” because, under the statute, “a work must be created by a human being”). Thaler will need to prove that the Work was created by a human author or persuade the Office not to follow a century’s worth of copyright law. He did neither.

Thaler does not assert that the Work was created with contribution from a human author, so the only issue before the Board is whether, as he argues, the Office’s human authorship requirement is unconstitutional and unsupported by case law. {This is not a ground for registration by Thaler. The Board can therefore not determine in what circumstances humans would have been involved in the creation and maintenance of machine-generated work to satisfy the copyright protection statutory requirements. See Compendium (Third) § 313.2 (the “crucial question” of human authorship is whether a computer is “merely being an assisting instrument” or “actually conceive[s]Perform[s]” the “traditional elements of authorship in the work”.} “The Office won’t register any claim at the moment if it finds that the work was not created by a human being.” § 306. The Work cannot be registered under this standard. The Board has reviewed the statute text and judicial precedent and the long-standing Copyright Office practice and concluded that human authorship is required for copyright protection in America. Therefore, the Work cannot be registered.

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Copyright Act provides protection for “original works by authorship”, which are held in tangible media of expression. 17 U.S.C. § 102(a). The phrase “original work of authorship” …

It is “very broad,” however, its coverage is not infinite. Congress used this language in order to protect a much smaller range of artistic works than the Constitution. This gap means that the Act does not cover all areas of subject matter, but future Congresses might want to. …

[C]Ourts rejected numerous attempts to expand copyright protection for non-human creations. The Ninth Circuit ruled that copyright protection can be granted to a book with words “authored” by non-human spiritual beings if the revelations are “humanly selected and arranged.” Urantia Found. v. Kristen Maaherra (9th Cir. (9th Cir. 1997) (holding that “something of human creativity had to have happened in order for the Book be copyrightable”, because it is “not creations of divinities that the copyright laws are intended to protect.” Similarly, a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author’s “children,” “widow,” “grandchildren,” and “widower,” — terms that “all imply humanity and necessarily exclude animals.” Naruto v. Slater (9th Cir. 2018); Kelley v. Chicago Park Dist. (7th Cir. (2011) (rejecting copyright claims in “living gardens” as “[a]Uthorship can only be described as “an entirely human endeavour” and “a landscape owes the most part of its appearance and form to natural forces.” The Office has provided guidance on the subject based upon these court rulings. CompendiumThis article provides several examples of works that are not humanly authorizable, including “a photograph taken and signed by a monkey” as well as “an application for the authorization to sing the Holy Spirit’s name as the author.” The Board does not know of any United States courts that have considered artificial intelligence as an author. However, they are consistent in determining that human expression cannot be protected by copyright.

{However, it appears that the Eastern District of Virginia ruled that artificial intelligence systems could not claim patent inventorship. Thaler v. Hirshfeld (E.D. Va. 2021 (concluding under the Patent Act that “an inventor” must be a natural individual and upholding rejection of patent applications). Though the court’s opinion was based on construction of the Patent Act, rather than the Copyright Act, the similarity of the court’s statutory analysis to that in the copyright cases relied on by the Board supports the conclusion here.} …

Thaler’s second argument that artificial intelligence could be considered an author in copyright law, because the doctrine of work made for hiring allows “nonhuman, artificial persons” such as companies to become authors is also unavailing. The Work clearly is not work for hire, as per the Copyright Act. Work made available for hire can only be prepared (A) by an employee or (B), by one or more parties who have “expressly agreed in writing that the work is for-hire”. In both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. Because the “Creativity Engine” is unable to enter into binding legal agreements, it does not meet this requirement. Second, work-for hire doctrine doesn’t address copyright protection. It only addresses the owner of the work. The statute, as explained previously requires that all works contain human authorship. The Work, therefore, is not an “authorized work” or “for hire”.

Much of Thaler’s … request amounts to a policy argument in favor of legal protection for works produced solely by artificial intelligence. Thaler cites no precedent or case law that could undermine the Office’s interpretation of the Copyright Act. Because copyright law as codified in the 1976 Act requires human authorship, the Work cannot be registered….

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