The United States Court of Appeals for District of Columbia Circuit affirmed the decision of the District Court for District of Columbia and denied an application for copyright by Dr. Stephen Thaler for the artistic work "A Recent Entrance to Paradise" created by the generative artificial intelligence "Creativity Machine". This post will focus on human authorship requirement and the work-for-hire provision under the US Copyright Act.
Human-Authorship Requirement
The US Copyright Office, District Court, and the Court of Appeal each held that an "author" under the US Copyright Act can only be a human being. This "human-author requirement" is set out in the Compendium of Copyright Office Practices published by the Copyright Office.
The Copyright Office will only register a work that was authored by a human; and conversely, it will "refuse to register a work if it determines that a human being did not create the work." More specifically, it will refuse to register works "produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author."
Because Dr. Thaler insisted at every level "that the present submission lacks traditional human authorship—it was autonomously generated by an AI," each level of decision-maker found that there was no author of the "A Recent Entrance to Paradise" work.
The Court of Appeal emphasized that, while the Copyright Act does not define the term "author", it uses the term in ways that could only refer to a human being (e.g. certain provisions refer to the author's nationality/domicile, their children/heirs, their widow/surviving spouse, their lifespan, their intentions). By contrast, when the Copyright Act discusses "machines" or a "computer program", they are tools that can be used, maintained, serviced or repaired by humans.
The Court of Appeal also referred to the report of the National Commission on New Technological Uses of Copyrighted Works (CONTU), which found in 1974 that "[t]he computer, like a camera or a typewriter, is an inert instrument, capable of functioning only when activated either directly or indirectly by a human." It was therefore well-settled by the enactment of the 1976 Copyright Act that the interpretation of "author" required human authorship.
The Court of Appeal rejected Dr. Thaler's dictionary definition (that "author" means "one that originates or create something") in view of the statutory interpretation principle that an identical word must have the same meaning throughout the Act. The Court found the word "author" could not be substituted for "machine" in provisions discussing, for example, the author's children or domicile.
Work-for-Hire
Each decision-maker also rejected that Dr. Thaler was the owner of the work because it was a work-for-hire (i.e. Dr. Thaler had "hired" the Creativity Machine to create the work, and therefore he could be considered the author and owner of that work). The Copyright Office found that there was no contract between Dr. Thaler and the Creativity Machine, and so there was no employment relationship.
The District Court added, even if he was an employer, that the work was never eligible for copyright because it did not have a human author. Therefore, there was no copyright that could transfer to Dr. Thaler. The Court of Appeal agreed.
The Court of Appeal further emphasized that the work-for-hire provision allows a non-human to be "considered the author" of a work, but they are not the author of work: "the word "considered" in the work-made-for-hire provision does the critical work here. It allows the copyright and authorship protections attaching to a work originally created by a human author to transfer instantaneously, as a matter of law, to the person who hired the creator."
A copy of the decision can be found here.
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.
