No Right to Copyright for AI
The owner of an artificial intelligence filed a suit against the United States Copyright Office for denying his application for a piece of visual art created by the AI. This case has recently been appealed and will be a landmark decision regarding the rights of AI and their owners to the work that is created by AI.
Attribution
A Recent Entrance to Paradise; Stephen Thaler/Creativity Machine
Public Domain, via Wikimedia Commons
In August of 2023, Judge Beryl A. Howell of the Court of Appeals of the District of Columbia handed down their decision in Thaler v. Perlmutter, holding that materials created by artificial intelligence are not eligible for copyright and granting the defendant’s cross-motion for summary judgment. The Plaintiff in this case sued the UCSO and the Register of Copyrights, Shira Perlmutter after the United States Copyright Offices (USCO) application denial. The USCO based its original denial on the grounds that a work must have human authorship to be eligible for copyright in the view of the Register of Copyrights. The Court upheld the USCO's decision but based its ruling on several different sources including the Copyright Act of 1976, the Constitution, and case law.
Plaintiff owns a computer system he calls the “Creativity Machine” that generated a piece of visual art he named “A Recent Entrance to Paradise.” He claims that the artwork was “autonomously created by a computer algorithm running on a machine,” thus making the AI the author and that he has a right to copyright it as work-for-hire since he is the owner of the “Creativity Machine.” The USCO and the Court both held that since the author of the work was not a human being, the Plaintiff had no right to register the work.
The D.C. Court of Appeals cited the Copyright Act, which extends copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed . . . .” They stated the defining principle for requiring works to have human ownership stems from the definition of the word author. While the Act itself does not define what an “author” is, the Court looks to centuries of settled understanding including the patent and copyright section of the Constitution. Article 1, clause 8 of the Constitution states Congress has the authority to “promote the progress of…useful arts, by securing for limited times to authors…the exclusive right to their respective writings.” The Framers of the Constitution conceived this section to incentivize individuals to create. The Court held that since it was originally written to incentivize creation that clause could only pertain to humans since non-human actors, such as AI, do not need incentive. Furthermore, the Copyright Act of 1909 explicitly included that only a “person” could receive copyright and there is indication in the relevant congressional report that Congress did not intend to change that when they enacted the current Act.
The Court also looked to decisions by the Supreme Court such as Burrow-Giles Lithographic Co. v. Sarony, which held that a photograph is copyrightable because a human creator behind the camera is responsible for conceiving of and designing the image and a camera is not capable of doing so without human intervention. The Court also looked to the famous monkey photograph case from the 9th Circuit, Naruto v. Slater, which was decided based on standing and not copyright issues, but that decision still considered who the Copyright Act was meant to protect, and it concluded that only humans had standing under the Act.
The Plaintiff made several arguments about why he was able to register the work as work-for-hire which the Court found to be irrelevant to the issue in the case, and attempted to correct the record that he was the one to provide instructions to the AI. Unfortunately, in his application to the Register, he stated that his only claim to the copyright was his ownership of the machine. The Court relied on that statement while deliberating, since his corrections were made too late, and it led to them holding in favor of the Defendant.
On October 11th, 2023, the Plaintiff filed a Notice of Appeal stating that they would be appealing the decision to the United States Court of Appeals for the District of Columbia Circuit.