Yesterday, the U.S. Court of Appeals for the District of Columbia Circuit issued its ruling in Thaler v. Perlmutter, a case centered on the question of whether a non-human author, without any intervention from a human, could be an author and hold copyright under the U.S. Copyright Act. The court found that a non-human machine could not be an author under the Act.  

In 2018, Steven Thaler filed an application to register a copyright claim in A Recent Entrance to Paradise with the U.S. Copyright Office. In that application, the author of the image was identified as the “Creativity Machine,” with Thaler listed as the claimant with a transfer statement: “ownership of the machine.” In his application, Thaler stated 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.” The Copyright Office refused to register the work and later affirmed the denial of registration. Thaler subsequently sued the Copyright Office and lost.  He appealed and has now lost again.  

In virtually every way, this decision should not be surprising. While it is absolutely conceivable that the product of AI and human collaboration may result in copyrightable works, it is well settled law that non-human authorship is not recognized under the U.S. Copyright Act. This opinion is mostly a repetition of the positions taken by the U.S. Copyright Office in its denial of registration.

That acknowledged, there are some points worth highlighting from the opinion:  

• First, the court centers much of its analysis on the text of the Copyright Act and the myriad ways in which the statutory language is dependent on humans as authors. Taken together, the Act is unarguably one that is built upon the premise of human authorship. The court says: “All of these statutory provisions collectively identify an “author” as a human being. Machines do not have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures.”
  
• Part of the court’s analysis is focused on whether the public would benefit from granting copyright to machine-authored works and ultimately concludes that it would not.  The court says: “But the Supreme Court has long held that copyright law is intended to benefit the public, not authors. Copyright law “makes reward to the owner a secondary consideration. ‘[T]he primary object in conferring the monopoly lie[s] in the general benefits derived by the public from the labors of authors.’” 

• It is important to remember that this opinion is only about the narrow question of whether a machine, working in isolation and with no human intervention, can be considered the author of a work. We should be careful not to try to extend this opinion beyond that. “Those line-drawing disagreements over how much artificial intelligence contributed to a particular human author’s work are neither here nor there in this case. That is because Dr. Thaler listed the Creativity Machine as the sole author of the work before us, and it is undeniably a machine, not a human being.” 

• Finally, the district court found that Dr. Thaler had waived the argument that, as creator of the Creativity Machine, he was the work’s author.  The Court of Appeals found that Dr. Thaler had not challenged that waiver and that it therefore could not address the question of whether works generated by Artificial Intelligence might be authored by the creator of the AI. (“Dr. Thaler argues that he is the work’s author because he made and used the Creativity Machine. We cannot reach that argument.”) This leaves some ambiguity as to whether a future creator of an AI might successfully claim copyright in a work themselves. It also leaves open questions where the human user of AI claims to be the author of an AI-generated work or portions of a work. This is the question the court will have to address head-on in Allen v. Perlmutter, a case currently pending in Colorado. We will continue to watch this space, and share with you any new developments.  

Ultimately, the Thaler v. Perlmutter decision is limited to the fact that a machine cannot be an author under copyright law. This is a sensible result and consistent with sound public policy.