Trouble in Paradise: Copyright Office Rejects AI-“Authored” Work for Copyright Registration

Background

Perhaps Steven Thaler sought an answer to that question when he filed an application with the US Copyright Office (the “Copyright Office”) in 2018 to register the Work for copyright protection. Thaler’s application identified a “Creativity Machine” as the author of the Work and noted that the Work “was autonomously created by a computer algorithm running on a machine.” Thaler listed himself as the copyright claimant, stating his “ownership of the machine” in a transfer statement. His application also stated that he was registering the computer-generated work as a work made for hire, with himself, “the owner of the Creativity Machine,” as the copyright claimant.

Thaler’s application was rejected by a Copyright Office registration specialist in 2019 because the work lacked the requisite “human authorship” to support a copyright claim. In response, Thaler requested that the Copyright Office reconsider its denial of registration, arguing that the requirement of human authorship is unconstitutional and not supported by statute or case law. The Copyright Office reached the same conclusion again after re-evaluating.

Thaler subsequently filed a second request for reconsideration with the Board. In addition to raising the same argument that refusing to extend copyright protection to machine-authored works was unconstitutional and not supported by legal precedent, Thaler raised a policy rationale that to not do so would incentivize individuals to dishonestly claim authorship for works autonomously created by AI.

The Decision

The Board affirmed the Copyright Office’s decision, concluding that “human authorship is a prerequisite to copyright protection.”[2] Operating under the precedent that “copyright law only protects the fruits of intellectual labor that are founded in the creative powers of the [human] mind,”[3] the Board reasoned that it was up to Thaler to present evidence that, as a human, he provided creative input or intervention. Notably, Thaler did not assert any evidence or argument of the sort, and instead endured with his position that the Copyright Office’s human authorship requirement was unconstitutional and unsupported by copyright jurisprudence. The Board, therefore, chose not to determine what level and circumstances of human involvement in the creation of machine-generated works would be necessary for copyright protection.[4]

Citing to the statutory text of the Copyright Act, a number of judicial opinions, and the longstanding practice of the Copyright Office, the Board concluded that human authorship is unequivocally a necessary component for copyright protection. The Board did admit, however, that it is not aware of any US court considering whether AI alone can author works that are eligible for copyright protection, pointing instead to patent law jurisprudence that AI cannot be the “inventor” of a patented invention.[5]

The Board also rejected Thaler’s argument that AI can author copyrightable works under the work for hire doctrine, because a work for hire requires either an employee relationship or a binding written instrument, neither of which are applicable to a machine. The work for hire doctrine, the Board reasoned, also only speaks to the identity of the copyright claimant, not the author of the copyrighted work.

Ultimately, the Board refrained from departing from longstanding precedent, stating that it is “for Congress, not the Board, to decide how best to pursue the Copyright Clause’s objectives.”[6]

More To Come…?

Should Thaler decide to challenge the Board’s decision in federal court, the Board’s decision could become the precursor to seminal jurisprudence on when, if at all, works created by artificial intelligence can be protected under copyright law.

[1] The opinion is available here.

[2] Id. at 3.

[3] Id. (internal quotation marks omitted).

[4] Id. at 3, n.3.

[5] Id. at 5.

[6] Id. at 4, n. 5 (internal quotation marks omitted).