D.C. Federal District Court Holds Work Created Entirely by an AI System Cannot Be Copyrighted

On August 18, 2023, in Thaler v. Perlmutter,[1] Judge Beryl A. Howell of the U.S. District Court for the District of Columbia granted the U.S. Copyright Office's motion for summary judgment,[2] affirming the Copyright Office's decision that a work generated entirely by AI with no human input is not copyrightable. The court's holding is consistent with the Copyright Office's prior guidance issued in March 2023,[3] reaffirming that copyright only protects material that is the product of human creativity.

Background

The case was brought by Stephen Thaler, an AI scientist who has been outspoken about IP rights in AI and AI sentience. Thaler's 2022 lawsuit followed his persistent attempts to register "A Recent Entrance to Paradise," a piece of visual art created by the AI system that Thaler calls the "Creativity Machine." Thaler argued that the Creativity Machine was the author and original copyright owner of the artwork, and that ownership had transferred to him under the work-for-hire doctrine and other theories. Essentially, as the owner of the Creativity Machine and developer of the AI generating software, Thaler argued that rights to the artwork vested in him as the owner.

A Recent Entrance to Paradise

Thaler also contested the "human authorship" requirement of the Copyright Office and further argued that AI should be acknowledged as an author where authorship criteria are otherwise met "with any copyright ownership vesting in the AI's owner." Each of Thaler's attempts to register this work were previously denied by the Register of Copyrights and the Copyright Office Review Board because the work lacked human authorship – leading to Thayer's lawsuit seeking judicial review and reversal of a final agency action.[4]

Cross-Motions for Summary Judgment

Both Thaler and the Copyright Office filed for summary judgment in the district court, with the sole issue being "whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright." The court sided with the Copyright Office and granted the defendants' motion. While the court acknowledged that copyright principles are adaptable to new media, this had its limits: the law has "never stretched so far…as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright." (emphasis added). The court tied the requirement of human authorship to the text of the Copyright Act and traced it through "centuries of settled understanding."

In Thaler's summary judgment motion, in addition to the human involvement issue, he focused on other doctrines by which the work would transfer to him, such as work for hire and common law property principles. The Court dismissed the applicability of these theories outright, stating that "[t]hese arguments concern to whom a valid copyright should have been registered." In the opinion of the Court, because human creation is an essential element, and because this work was not created by a human, copyright could never exist in the work and therefore it could never have been transferred to or owned by Thaler under any theory.

Human Creation Requirement – To What Extent?

In a footnote,[5] the Court noted that Thaler argued in his motion for summary judgment that Thaler developed, used, prompted, and owned the Creativity Machine implying a level of human involvement "entirely absent in the administrative record." Plaintiff had previously filed for the copyrights at the Register for an entirely "autonomously" created work and had stated that he played no role in the creation of the work.

Because the Court was constrained in its judicial review of these facts as presented in the agency record, Thaler was "too late" with these arguments and the court could not consider or analyze what is perhaps the more interesting questions of "how much human input is necessary to qualify the user of an AI system as an 'author' of a generated work," as well as the scope of protection over the resulting image, and how to assess originality of AI-generated works when the AI system may have been trained on unknown pre-existing works.

The Court found support for its ruling in prior cases where copyright rights were denied to non-human entities, citing also cases where copyright rights were denied to various divine beings and the famous "monkey selfie case" where a California district court held that a crested macaque could not hold a copyright, either.[6]

Prior Copyright Guidance

This ruling is unsurprisingly consistent with the Copyright Office's prior guidance on AI, given the long line of cases relating to the requirement for human creation for copyrightability. In that same March 2023 Guidance, the Copyright Office did provide clues as to how registrants might successfully register works where some aspects are created by a human and some contributed by AI. It says that in evaluating copyright applications, the initial question is "whether the 'work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine." In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of 'mechanical reproduction' or instead of an author's "own original mental conception, to which [the author] gave visible form." That inquiry is fact-intensive and "is necessarily a case-by-case inquiry."[7]

Thus, Thaler could have taken the approach in the agency proceedings (and not just in the district court) that his development and creation of the "Creativity Machine" could explain how the AI tool was used to create the final work and to whom the work "owes its origin."[8] Moreover, the decision leaves open the extent to which creators who are more involved in the conception and creation of a work may claim copyright. Subsequent cases will no doubt explore this boundary.

We can expect further guidance to be issued as AI technology and human creative practices evolve in this area. DWT will continue to provide updates regarding intellectual property issues in AI while helping clients address these issues. Additional relevant alerts from DWT are available under the Related Posts below.

Wendy Kearns chairs DWT's Technology practice. Jim Rosenfeld litigates media and IP cases and advises media, tech, and entertainment clients on issues raised by generative AI. We thank John Seiver for his valuable assistance with this update.