The Volokh Conspiracy

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No Copyright in AI-Created Works, Says Copyright Office


The AI-generated artwork involved in this matter.


From a Copyright Review Board decision (Re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise) last week:

On November 3, 2018, Thaler filed an application to register a copyright claim in the Work. The author of the Work was identified as the "Creativity Machine," with Thaler listed as the claimant alongside a transfer statement: "ownership of the machine." In his application, Thaler left a note for the Office stating that the Work "was autonomously created by a computer algorithm running on a machine" and he was "seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine." …

[C]opyright law only protects "the fruits of intellectual labor" that "are founded in the creative powers of the [human] mind." U.S. Copyright Office, Compendium (Third) of U.S. Copyright Office Practices § 306 (quoting Trade-Mark Cases (1879)); see also Compendium (Third) § 313.2 (the Office will not register works "produced by a machine or mere mechanical process" that operates "without any creative input or intervention from a human author" because, under the statute, "a work must be created by a human being"). So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. He has done neither.

Thaler does not assert that the Work was created with contribution from a human author, so the only issue before the Board is whether, as he argues, the Office's human authorship requirement is unconstitutional and unsupported by case law. {Because Thaler has not raised this as a basis for registration, the Board does not need to determine under what circumstances human involvement in the creation of machine-generated works would meet the statutory criteria for copyright protection. See Compendium (Third) § 313.2 (the "crucial question" of human authorship is whether a computer is "merely being an assisting instrument" or "actually conceive[s] and execute[s]" the "traditional elements of authorship in the work").} Currently, "the Office will refuse to register a claim if it determines that a human being did not create the work." § 306. Under that standard, the Work is ineligible for registration. After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice, the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.

The Copyright Act affords protection to "original works of authorship" that are fixed in a tangible medium of expression. 17 U.S.C. § 102(a). The phrase "original work of authorship" … is "very broad," but its scope is not unlimited. Congress chose this language to encompass a smaller set of creative works than could be protected under the Constitution. Because of this gap, the Act leaves "unquestionably other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to." …

[C]ourts have repeatedly rejected attempts to extend copyright protection to non-human creations. For example, the Ninth Circuit held that a book containing words "'authored' by non-human spiritual beings" can only gain copyright protection if there is "human selection and arrangement of the revelations." Urantia Found. v. Kristen Maaherra (9th Cir. 1997) (holding that "some element of human creativity must have occurred in order for the Book to be copyrightable" because "it is not creations of divine beings that the copyright laws were intended to protect"). Similarly, a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author's "children," "widow," "grandchildren," and "widower," — terms that "all imply humanity and necessarily exclude animals." Naruto v. Slater (9th Cir. 2018); see also Kelley v. Chicago Park Dist. (7th Cir. 2011) (rejecting a copyright claim in a "living garden" because "[a]uthorship is an entirely human endeavor" and "a garden owes most of its form and appearance to natural forces"). These court decisions are reflected in the Office's guidance in the Compendium, which provides examples of works lacking human authorship such as "a photograph taken by a monkey" and "an application for a song naming the Holy Spirit as the author." While the Board is not aware of a United States court that has considered whether artificial intelligence can be the author for copyright purposes, the courts have been consistent in finding that non-human expression is ineligible for copyright protection.

{It appears, however, that the Eastern District of Virginia held that artificial intelligence systems cannot claim inventorship of patents. Thaler v. Hirshfeld (E.D. Va. 2021) (concluding that under the Patent Act, "an 'inventor' must be a natural person" and upholding refusal of a patent application). Though the court's opinion was based on construction of the Patent Act, rather than the Copyright Act, the similarity of the court's statutory analysis to that in the copyright cases relied on by the Board supports the conclusion here.} …

Thaler's secondary argument, that artificial intelligence can be an author under copyright law because the work made for hire doctrine allows for "non-human, artificial persons such as companies" to be authors, is similarly unavailing. First, the Work is clearly not a work made for hire as defined in the Copyright Act. A work made for hire must be either (A) prepared by "an employee" or (B) by one or more "parties" who "expressly agree in a written instrument" that the work is for-hire. In both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. The "Creativity Machine" cannot enter into binding legal contracts and thus cannot meet this requirement. Second, the work-for-hire doctrine only speaks to the identity of a work's owner, not whether a work is protected by copyright. As explained above, the statute requires that a work contain human authorship. In sum, the Work is not a work made for hire because it is neither a "work of authorship" nor a work created "for hire."

Much of Thaler's … request amounts to a policy argument in favor of legal protection for works produced solely by artificial intelligence. He cites to no case law or other precedent that would undermine the Office's construction of the Copyright Act. Because copyright law as codified in the 1976 Act requires human authorship, the Work cannot be registered….

Thanks to the Media Law Resource Center MediaLawDaily for the pointer.