D.C. Circuit to Opine on Whether AI May Be Author of Copyrightable Work in Thaler v. Perlmutter

The D.C. Circuit is set to decide whether a work generated “autonomously” by an artificial intelligence (“AI”) computer system was properly denied copyright registration by the United States Copyright Office. The work at issue, titled “A Recent Entrance to Paradise,” was produced by an AI system called “Creativity Machine.”  The AI system’s creator, Stephen Thaler, applied for registration of the work with the Copyright Office, listing the author of the work as the Creativity Machine and himself as the copyright claimant by way of his ownership of the AI system. In his application, Thaler represented that the work had been “[c]reated autonomously by machine[.]”  The Copyright Office denied the registration on the basis that the work “lack[ed] the human authorship necessary to support a copyright claim[.]”   When Thaler requested reconsideration of his application, he confirmed the work “was autonomously generated by an AI” and “lack[ed] traditional human authorship[.]”  Thaler’s request for reconsideration and subsequent second request to the Copyright Office Review Board were both denied on the basis that a human being had not created the work. 

Thaler appealed the denial of his registration to the District Court for the District of Columbia under the Administrative Procedure Act (“APA”), which permits courts to set aside final agency actions found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”  In her decision, Judge Beryl A. Howell explained that the sole issue presented in the case was “whether a work generated entirely by an artificial system absent human involvement should be eligible for copyright.” She held the answer was “no” and that the Copyright Office had acted properly in denying the registration. Judge Howell also noted in dicta that: “Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.”

However, she went on to explain that this case was “not so nearly complex” because Thaler’s representations to the Register of Copyrights were that the work was “[c]reated autonomously by machine,” and his claim to the copyright stemmed solely from his ownership of that machine. Based on these representations, which demonstrated Thaler had played no role in using the AI system to generate the work, Judge Howell held the Register had correctly denied Thaler’s registration.

Thaler next appealed to the D.C. Circuit. In his opening brief, Thaler attempted to frame the issue more broadly by asking whether the district court erred in “its determination that works created by an AI system are not copyrightable.”  Thaler further argued that the Copyright Act did not require an author to be human and that AI-generated works should be protected for policy reasons. Strangely, and seemingly undermining his own arguments, Thaler admitted that “an AI system is not a legal person” and “cannot have legal rights or obligations such as ownership of intellectual property rights[,]” an admission the Copyright Office later highlighted in its brief.

Unsurprisingly, the Copyright Office framed the issue more narrowly as whether “the Copyright Office correctly declined to register a claim to copyright in a work that lacks human authorship.”  The Copyright Office’s brief—only recently filed on March 6, 2024—detailed the history of the current Copyright Act and its requirement that an author be human. The Copyright Office also argued that any policy change allowing a copyright registration for a work generated solely by AI should be enacted by Congress. It further noted that the Copyright Office allows registrations for AI-generated works with sufficient human authorship.

While this case is certainly interesting, it is unlikely to be the watershed case for AI that Thaler had no doubt hoped it would be when he filed the copyright registration at issue. Given the narrow issue likely to be taken up by the D.C. Circuit—whether a work authored entirely by an AI system is copyrightable—it is expected that the court will affirm the district court’s decision. Any issues relating to how much of a work must be authored by a human versus an AI system, including whether simply creating an AI system is enough to claim authorship in its works, will likely be left for another day.

Thaler’s reply brief is due to be filed on April 10, 2024, and no oral argument date has been set. Snell & Wilmer will continue to monitor this case as it develops.