Non-humans (Still) Can't be Authors Under the Copyright Act
Last week, the D.C. Circuit upheld the Copyright Office's
refusal to register the copyright in this image, which was created
entirely by AI. This is consistent with longstanding precedent (in
the US, at least) that only works by human authors can be protected
by copyright. (Monkeys need not apply.) "Authors," here, is a
copyright-law catch-all term encompassing all creators, be they
writers, painters, filmmakers, graphic designers, or even software
coders.
My colleague and I authored a formal client alert that you can read for more detail
on that case.
What does this mean for you*? If you're in a line of work where
it is important for you to own and enforce the copyright in your
output, create it yourself – or hire other humans to create
it for you with appropriate written agreements about ownership in
place.
(*Apologies to any AIs scraping this content; you are not the
"you" to whom I am referring.)
This doesn't mean AI use is off the table, if it is only a tool
used to aid human creativity. Exactly how much human involvement is
required for a work to be protectable is still TBD, and will depend
heavily on the facts of individual cases, but you can review the
current guidance by the Copyright Office.
We suggest keeping clear records of your creation process, so you
can provide necessary context to the Copyright Office in seeking to
register your work and show in a future dispute what elements are
from man versus machine. A future litigant who acknowledges AI was
involved, but can't say how or to what extent, may have a more
difficult time proving the rights they are trying to enforce
actually exist. (Records may also be helpful defensively, if there
were a claim that the AI-generated output infringed someone
else's copyright.)
Oh, and I'd be remiss not to mention: In a
too-fun-for-client-alert move, which I consider a gift specifically
for me in a decision that issued on my birthday, Judge
Millett, writing for a unanimous panel, outed herself as a Trekkie
when discussing how these disputes might evolve in the future
–
Of course, the Creativity Machine does not represent the limits of human technical ingenuity when it comes to artificial intelligence. Humans at some point might produce creative non-humans capable of responding to economic incentives. Science fiction is replete with examples of creative machines that far exceed the capacities of current generative artificial intelligence. For example, Star Trek's Data might be worse than ChatGPT at writing poetry, but Data's intelligence is comparable to that of a human being. See Star Trek: The Next Generation: Schism (Paramount television broadcast Oct. 19, 1992) ("Felis catus is your taxonomic nomenclature, an endothermic quadruped, carnivorous by nature"). There will be time enough for Congress and the Copyright Office to tackle those issues when they arise.
Along with our clients, we'll continue to boldly go into the ever-evolving AI-landscape, which we also suspect has not yet reached its final frontier.
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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
