In the first federal court ruling of its kind, the U.S. District Court for the District of Columbia has concluded in Thaler v. Perlmutter that "United States copyright law protects only works of human creation." On August 18, 2023, the court affirmed the holding of the U.S. Copyright Office ("USCO") that a work of visual art listing artificial intelligence ("AI") as its sole author could not be registered because it lacked human authorship. The court also held that a work made for hire assignment theory failed for reasons arising out of this same underlying defect.
Facts and Procedure: Three Rejections at the USCO
Plaintiff Dr. Stephen Thaler owns a computer system that he calls the "Creativity Machine": an AI-powered program capable of generating visual art. Dr. Thaler describes the Creativity Machine's output as akin to that of a human artist. According to Dr. Thaler, the Creativity Machine generated the piece of visual art shown above, titled "A Recent Entrance to Paradise" (the "Work").
In 2019, Dr. Thaler sought to register the Work with the USCO. On his application, Dr. Thaler identified the Creativity Machine as the Work's author, explaining that the Work had been "autonomously created by a computer algorithm running on a machine." Dr. Thaler asserted that the copyright in the Work had been transferred to him, the Creativity Machine's owner, as a "work-for-hire."
The USCO denied Dr. Thaler's application because the Work "lack[ed] the human authorship necessary to support a copyright claim" because "copyright law only extends to works created by human beings."
Dr. Thaler requested reconsideration, again asserting that the Work "was autonomously generated by an AI" and "lacked traditional human authorship." Dr. Thaler contested the USCO's human authorship requirement, "urging that AI should be 'acknowledge[d] . . . as an author where it otherwise meets authorship criteria, with any copyright ownership vesting in the AI's owner.'"
The USCO again refused to register the Work, restating that "[b]ecause copyright law is limited to 'original intellectual conceptions of the author,' the Office will refuse to register a claim if it determines that a human being did not create the work.'"
Dr. Thaler made a second request for reconsideration, asserting the same policy arguments, and the USCO's Review Board affirmed the denial of registration.
Dr. Thaler appealed the Review Board's decision to the U.S. federal district court for the District of Columbia. He claimed that the USCO's denial to register the Work was "arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of Defendants' statutory authority," in violation of the Administrative Procedure Act ("APA").
The sole question before the court was whether the USCO acted arbitrarily or capriciously, or otherwise violated the APA, in declining to register a Work authored exclusively by a computer.
USCO Did Not Err; Copyright Registration Reserved for Human Innovation
The court affirmed the Review Board's decision, holding that human authorship is "a bedrock requirement of copyright." The district court's holding provides the first Article III court affirmation of the rationale laid out earlier this year in the USCO's guidance on human authorship as it relates to generative AI. Read more about this guidance in our article Copyright in the Age of AI: What You Need to Know About the U.S. Copyright Office's Latest Guidance.
To reach its decision, the court relied on the Copyright Act's plain text, the policy rationale underlying the Constitution's copyright clause, the legislative history of the Copyright Act, and case precedent. The court also considered and rejected Dr. Thaler's policy arguments and dismissed Dr. Thaler's work-for-hire arguments as moot.
1. Plain Text of the Copyright Act
The Copyright Act of 1976 provides copyright protection to "original works of authorship fixed in any tangible medium of expression." Thus, the court reasoned, to be eligible for copyright, a work must have an author. Dr. Thaler asserted that the critical word "author" is not defined anywhere in the Act. Nevertheless, the court, relying on the Merriam-Webster dictionary definition of "author," concluded that an author is "one that is the source of some form of intellectual or creative work—the creator of an artistic work—a painter, photographer, filmmaker, etc." The court concluded that this definition implies that the originator of the work must have the capacity for intellectual, creative, or artistic labor; in other words, that originator must be a human.
2. Policy to Incentivize Human Creation
The court asserted that the Copyright Act's presumption of human authorship rests on centuries of settled understanding that the Constitution grants Congress the authority to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The Constitution makes clear that the recognition of exclusive rights in intellectual property was intended to further the public good by incentivizing individuals to create and invent. The court determined that encouraging humans to create—"and thereby promote science and the useful arts—was thus central to American copyright from its very inception." The court reasoned that non-human actors have no need for such incentivization and, therefore, copyright was not designed to reach them.
3. Legislative History
Next, the court traced the evolution of the Copyright Act, asserting that the understanding of human authorship has persisted when copyright law has otherwise evolved. The court noted that the Copyright Act of 1909 contained an explicit provision specifying that only a "person" could "secure copyright for his work." Although Congress omitted that explicit provision when it drafted the 1976 Copyright Act, the court found no evidence of congressional intent to change this "longstanding requirement" and thus concluded that Congress intended that the 1976 Act incorporate the "original work of authorship standard without change from the previous version."
The court acknowledged Dr. Thaler's observation that, throughout its long history, "copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialized on paper." However, the court found that at the base of this adaptability "has been 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."
4. Case Precedents
Looking to earlier caselaw for precedent, the court found that the Supreme Court's 1884 holding in Burrow-Giles Lithographic Co. v. Sarony provided a clear endorsement of the human authorship requirement in the face of new technology. In Burrow-Giles, the work (a photograph of famous author Oscar Wilde) was created with a new technology (the camera) but was found to be entitled to copyright protection because the photograph was "representative[] of original intellectual conceptions of the author," namely, "posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, [and] suggesting and evoking the desired expression." The Thaler court found that in Burrow-Giles, "human involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright."
Lower courts following Burrow-Giles have uniformly declined to recognize copyright in works that, by contrast, lack "any human involvement." Courts have found, for example, that the following cannot be authors: the spirit Phylos the Thibetan (Oliver v. St. Germain Foundation); celestial beings (Urantia Foundation v. Kristen Maaherra); the voice of God (Penguin Books U.S.A., Inc. v. New Christian Church of Full Endeavor); Mother Nature (as creator of cultivated gardens) (Kelley v. Chicago Park District); and crested macaques (Naruto v. Slater).
In view of these precedents, the court found that the human authorship requirement is deeply entrenched in copyright caselaw.
By contrast, Dr. Thaler could point to no case in which copyright protection had been held to extend beyond human authorship. Because Dr. Thaler was unable to identify a single instance in which a court had recognized copyright in a work originating in a non-human, the court held that the Copyright Office had not abused its discretion in refusing registration to the output of the Creativity Machine.
5. Policy Questions Reserved for Another Day
Dr. Thaler attempted to recast the issue before the court by asserting new facts about his direction and control over the AI program, injecting new policy considerations about how much human input is necessary for a work to qualify for copyright protection. But the court found that Dr. Thaler's attempt to update and modify the administrative record on review was "too late."
The court did note that there will be many challenging questions of copyrightability as a new generation of visual and other artistic works are created by artists with AI in their toolboxes. How much human input is necessary? What will be the scope of protection granted by copyright for images generated with the assistance of AI? How will a court assess the originality of an AI-augmented work? How might copyright incentivize future works involving AI? Several of these policy issues were also foreshadowed by the UCSO in its Zarya of the Dawn decision in May 2023, which we covered here. However, the court found that this case, on the record before it, was "not nearly as complex." "In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No."
6. No Work Made for Hire without a Work
Finally, the court rejected Dr. Thaler's attempt to argue that he was the author of "A Recent Entrance to Paradise" under the work made for hire doctrine, or by virtue of the common law of property. Dr. Thaler's common law arguments "presuppose[d] that an interest exists to be claimed" and "in doing so, put the cart before the horse." Because the work was not created by a human, it was not entitled to copyright protection, and "[c]ommon law doctrines of property transfer cannot be implicated where no property right exists to transfer in the first instance."
As for the work made for hire doctrine, the court pointed out that the Copyright Act delineates two ways for a work to be deemed a work made for hire, and both presuppose that the work was created by a human. First, a work can be created "by an employee within the scope of his or her employment" (emphasis in original). The court asserted that the use of personal pronouns restricted this category of works made for hire to works created by human beings. Second, a work can be deemed a work made for hire if the creator and the commissioner "expressly [so] agree in a written instrument signed by them" (emphasis in original). The court stated that this path to work-made-for-hire status requires "a meeting of the minds and exchange of signatures in a valid contract not possible with a non-human entity." Because neither option for creating a work made for hire was feasible without a human creator, the court crafted a bright-line rule establishing that only works created by humans can be works made for hire. Thus, Dr. Thaler could not establish copyright protection by claiming authorship of the Work as a matter of law.
The case is Thaler v. Perlmutter, No. 22-1564 (D.D.C. Aug. 18, 2023). Opinion at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2022cv1564-24.
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