Background
Dr. Stephen Thaler’s attempts to obtain intellectual property protection for artificial intelligence were once again shot down by the courts, when the U.S. Court of Appeals for the District of Columbia affirmed that the Copyright Act of 1976 does not protect works created entirely by AI. The court’s decision in Thaler v. Perlmutter follows a similar conclusion by the U.S. Court of Appeals for the Federal Circuit, which denied patent rights for an invention by AI.
In his previous foray into seeking intellectual property rights for AI, Dr. Thaler filed two patent applications naming “Device for the Autonomous Bootstrapping of Unified Science,” an AI software system, as the sole inventor. In Thaler v. Vidal, the Federal Circuit affirmed the district court's ruling that an AI machine could not be listed as an inventor because the Patent Act limits inventorship to natural persons.
In Thaler v. Perlmutter, Dr. Thaler developed a generative AI system named the “Creativity Machine” and used it to create an image titled “A Recent Entrance to Paradise.” The U.S. Copyright Office denied Dr. Thaler’s application to register copyright for the image, in which he listed Creativity Machine as the “author” of the work. Following the Copyright Office’s denial, Dr. Thaler first appealed the decision to the U.S. District Court for the District of Columbia, which upheld the denial. Dr. Thaler then appealed to the D.C. Circuit, which unanimously affirmed the district court’s decision and the Copyright Office’s denial of the application.
Court’s Rationale in Denying Copyright Protection
Writing for the unanimous appellate panel, Judge Patricia Millett reminded Dr. Thaler that “[a]uthors are at the center of the Copyright Act.” While the Copyright Act does not define the term “author,” the court held that several provisions of the act supported the Copyright Office’s interpretation that the “author” must be human. Among other things, the court relied on the act’s ownership and inheritance provisions, which are premised on the “author’s” ability to own property — something a machine cannot do. The court also pointed to provisions limiting the duration of copyright based on the lifespan of the author, a concept that is inapplicable to machines. Further, machines lack the legal capacity to provide an authenticating signature or demonstrate intent, both essential factors in determining joint authorship.
The court disagreed with Dr. Thaler’s argument that a narrow interpretation of the term “author” would prevent the protection of works generated with the assistance of AI. The court acknowledged that while there might be disagreement over how much AI contribution is permissible for a work to still be considered authored by a human, such line-drawing issues were not pertinent to Dr. Thaler’s appeal, where AI was listed as the author before the Copyright Office. As Dr. Thaler failed to raise the argument before the Copyright Office that he was an “author” because he created the machine, the court declined to consider the issue on appeal.
Takeaways
Here, it was undisputed that Dr. Thaler had listed the Creativity Machine as the author and that the machine had generated the image before the Copyright Office. However, the court did not hold that copyright protection was inherently prohibited for works where AI played an assistive role. Rather, the copyrightability of such works would depend on a line-drawing exercise between the respective roles of AI and humans in the generation of creative works. Where the line will be drawn is likely to be the subject of further dispute. For example, in Allen v. Perlmutter, artist Jason Allen is appealing the Copyright Office’s denial of registration for his award-winning image “Théâtre D'opéra Spatial,” which was generated on Midjourney AI software using more than 600 prompts. For the graphic novel Zarya of the Dawn, the Copyright Office concluded that a graphic novel comprising human-authored text combined with images generated by Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.
With the increased use of AI in assisting human creativity, and the Copyright Office’s emphasis on the importance of the role of the “human” to grant protection, the current state of the law has important implications for the workplace.
- Monitor the use of AI in generating work product: Clients, especially those in the creative industries, should review and monitor the use of AI for the generation of work product. As the court and the Copyright Office make clear, the scope of copyright protection may entail establishing the predominance of the human input through a careful record of the use of AI, if any, in the creative process.
- Human prompts alone may be insufficient to obtain protection: In Allen, the artist provided highly specific prompts to select the colors, style, and era of the artwork, arranged the elements in the image to represent women dressed in Victorian dresses performing opera on stage, and further prompted the AI to depict each performer as wearing a space helmet. Allen also used prompts to modify the image to include a theater stage, an audience, and a window with a view of the outer world. Despite the artist’s undisputed contribution in the form of carefully crafted prompts, image selection, and modification, the Copyright Office denied registration, holding that the artist “had no control over how the artificial intelligence tool analyzed, interpreted, or responded to these prompts. Nor did he exercise any control over the actual creation, development, or execution of the image that Midjourney rendered on his screen.”
- Work for hire: While a company or non-human artificial individuals may own copyright under this doctrine, the court expressly disallowed this rationale as a work-around to assert copyright ownership over content that is not entitled to copyright in the first instance.
