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AI Cannot be the Author: U.S. Copyright Law Requires the Human Touch

AI Cannot be the Author: U.S. Copyright Law Requires the Human Touch

On August 18, 2023, a federal District Court in the District of Columbia in Thaler v. Perlmutter, 22-cv-01564-BAH, definitively ruled that AI cannot be an author of a copyright under the U.S. Copyright Act, because “United States copyright law protects only works of human creation.” The court denied Dr. Stephen Thaler’s bid to overturn the U.S. Copyright Office’s repeated refusal to register artwork generated by his AI machine. We previously wrote about this case here . Dr. Thaler’s counsel has expressed their intention to appeal the ruling.

By way of background, Dr. Thaler submitted a copyright application for artwork created by a computer program using AI technology. The application named the AI as the author and Dr. Thaler, who owned the AI program, as the copyright claimant. He made clear in his communications with the Copyright Office that the work had been “autonomously created by a computer algorithm running on a machine.” After the Office denied his application and denied two of his requests for reconsideration, Dr. Thaler filed suit against the Office alleging that its denial of registration was arbitrary, capricious, and an abuse of discretion under the Administrative Procedure Act.

The court recognized that copyright law “is designed to adapt with the times,” as codified in the statute’s language that copyright attaches to “original works of authorship fixed in any tangible medium of expression, now known or later developed.” 17 U.S.C. § 102(a) (emphasis added). But undergirding this adaptability is “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 new media.” This is because the act of “fixing” the work in a tangible medium must be done by an “author”—a term undefined in the Copyright Act, but which the dictionary defines as the creator of the intellectual or creative work. The court had no hesitation to declare that the creator of such work must be a human being.

According to the court, the requirement for the author to be a human “rests on centuries of settled understanding,” beginning with the U.S. Constitution, which grants Congress the power to grant copyrights and patents to incentivize human beings to create and invent. But “[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.” The predecessor Copyright Act (the 1909 Act) also explicitly provided that only a “person” could “secure copyright for his work,” further demonstrating the settled nature of this understanding. The court also found that case law interpreting copyright law has consistently recognized the need for the human element, and has declined to recognize copyright in works lacking this element.

To be clear, the Office does not shun all AI-generated work, as works generated with the assistance of AI could still be deemed protected by copyright where the AI merely assisted in creating the human author’s mental conception, as opposed to the AI conceiving the work itself. But where the line is drawn may not be so clear depending on the circumstances and the particular AI technology involved. The court observed that “challenging questions” will be raised “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 best be used to incentivize creative works involving AI, and more.” In Dr. Thaler’s case, no such complex questions were involved as the record reflected that he clearly represented to the Office that the AI program created the artwork autonomously.

As we have begun seeing , the precipitous increase in AI-generated content will undoubtedly increase the opportunity to consider some of the challenging questions identified by the court. The Copyright Office has been active in addressing these issues, as it launched in March 2023 its AI initiative to examine copyright law and policy issues raised by AI, as well as a guidance —though criticized as providing insufficient clarity—for “Works Containing Material Generated by Artificial Intelligence,” which provide instructions on how to properly disclose and submit applications for content using AI technology, among other information.

Stay tuned for more from the Ingram Yuzek Newsroom.

By: Mioko C. Tajika

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