On Friday 18 August 2023, a United States District Court granted a Motion for Summary Judgment, affirming the decision of the U.S. Copyright Office (USCO) to deny Dr Stephen Thaler copyright protection for an artwork that was generated entirely by artificial intelligence (AI). The Court held that copyright protection is available only to works that are authored by a human.
In April, we published an alert discussing Dr Thaler’s international mission to have his AI system DABUS (Device for the Autonomous Bootstrapping of Unified Sentience) recognised as an inventor for the purposes of patenting inventions it made. Dr Thaler has brought actions in Australia, the United States, the United Kingdom, South Africa and more with little success.
His latest attempt to protect the works produced by his AI system, which he also refers to as the ‘Creativity Machine’, involved an application to register an artistic work for copyright in the USCO. Dr Thaler listed the Creativity Machine as the author of the relevant work, and contended that, consistent with the US ‘work-for-hire’ doctrine, copyright in the work transferred to him, as the owner of the Creativity Machine. The USCO denied the application, citing the US Copyright Act’s requirement for human authorship. Dr Thaler challenged this decision several times, asking for a reconsideration of the application before this culminated in a lawsuit between Dr Thaler and the Register of Copyrights and Director of the USCO, Shira Perlmutter.
Dr Thaler’s argument was that USCO’s denial of copyright registration to the work ‘A Recent Entrance to Paradise’ was ‘arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of the defendant’s statutory authority.’ Pursuant to the Administrative Procedure Act, a U.S. District Court was able to hear the appeal and both parties filed Motions for Summary Judgment.
In considering whether copyright protection could extend to a work that was created without human intervention and creativity, U.S. District Court Judge Beryl A. Howell looked to the history of copyright law and its tendency to be malleable to cover works created with or involving technology. Justice Howell discussed the example of photography, noting that when the question was first raised as to whether a photograph can obtain copyright protection, an issue arose as to whether a mechanical device that reproduced an image of what was in front of the device has enough human input to obtain copyright protection. In Sarony[1] (the case that initially answered this question), the Court held that the photographer has enough artistic freedom to determine the nature of the photograph to meet the threshold for human authorship. Justice Howell contrasted this to the work created by the Creativity Machine. Justice Howell noted that unlike a photograph, which has human involvement, copyright has never stretched so far as to protect works absent of any guiding human hand, stating that ‘human authorship is a bedrock requirement of copyright’.
It was recognised that as intellectual property law has developed, it has maintained that authorship is synonymous with human creation and the legislative requirement of ‘authorship’ presumptively meaning human ‘rests on centuries of settled understanding’. Justice Howell noted that protecting intellectual property has the aim of incentivising individuals to create and invent.
Justice Howell did acknowledge the challenge that AI poses to copyright law, noting that it will be interesting to assess how much human input is necessary to qualify the user of an AI system as an author of an AI generated work. However, she quickly reminded Dr Thaler that his case was not so complex given it was his submission that the AI system was solely responsible for the artwork the subject of the application for copyright protection and that the Creativity Machine should therefore be the author.
Dr Thaler attempted to persuade Justice Howell by stating that he provided instructions and directed his AI system to generate the work and that the machine can only operate with his direction. However, given that he had sought copyright protection on the basis that the Creativity Machine had autonomously created the work, Justice Howell could not take this into consideration. The decision confirms that US copyright law only protects works created by humans.
While this decision potentially leaves open the possibility of future applications for copyright protection in circumstances where a human directs an AI system to generate a work, USCO’s guidance on Works Containing Material Generated by Artificial Intelligence released in March 2023 suggests there will be further obstacles for such works.
As discussed in our recent alert on Generative AI & Copyright Law, USCO’s guidelines emphasise the ‘human authorship requirement’ and indicate that when a human author ‘solely’ provides a ‘prompt’ to an AI system to produce a complex written, visual, or musical work in response, the ‘traditional elements of authorship’ are not determined by the user and thus the USCO will not register that work.
However, the USCO guidelines do acknowledge that there will be cases in which a work containing AI-generated material does contain sufficient human authorship to support a copyright claim, including where:
- a human author selects or arranges AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship’ or
- a human author modifies material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.
The USCO qualifies this by stating that in these particular cases copyright only protects the human-authored aspects of the works, which are ‘independent of’ and do ‘not affect’ the copyright status of the AI-generated material itself. However, the USCO also acknowledged that AI systems could be used as tools in the creative process, noting that use of guitar pedals in music or Adobe Photoshop by visual artists does not prevent the resulting works from qualifying for copyright protection. According to the USCO, ‘what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship’.
As Justice Howell noted, we are ‘approaching new frontiers in copyright’ as AI becomes part of the toolbox of artists who generate visual and other artistic works. Governments around the world are considering the role of copyright in incentivising the creation of such works.
In the present case, Dr Thaler’s legal representatives ‘strongly disagree’ with Justice Howell's decision and are currently reviewing the decision, suggesting that an appeal may be filed soon.[2]
We will continue to follow Dr Thaler’s challenges to copyright law closely.
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)
Franklin Graves, ‘DC Court Says No Copyright Registration for Works Created by Generative AI’, IPWatchdog, 19 August 2023; Maya Pontone. ‘AI-Generated Artwork Not Eligible for Copyright, Judge Rules’, Hyperallergic, 21 August 2023.
