A Recent Entrance to Paradise, an image generated by Steven Thaler’s “Creativity Machine.”
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 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.
Uncopyrightable image generated using Google Gemini, illustrating a group of photographers excited to learn that their nearly identical photos of the public domain Washington Monument are all copyrightable) (“The Office receives ten applications, one from each member of a local photography club. All of the photographs depict the Washington Monument and all of them were taken on the same afternoon. Although some of the photographs are remarkably similar in perspective, the registration specialist will register all of the claims.”) (Compendium of Copyright Office Practices, Section 909.1)
In our comments, we urged the Copyright Office to not pursue revisions to the Copyright Act at this time and instead work towards providing greater clarity for authors of AI-generated and AI-assisted works (“Instead of proposing revisions to the Copyright Act to enshrine the human authorship requirement in law or clarify the human authorship requirement in the context of AI-generated works, the Office should continue to promulgate guidance for would-be registrants.”) We also noted that, as technology evolves in the coming years, our ideas about the copyrightability of AI-generated and AI-assisted works will likely shift as well.
We are happy to see that the USCO heard our voice and that of many others regarding no need for legislative change at this time (“The vast majority of commenters agreed that existing law is adequate in this area…”) (Report, page ii). We likewise continue to be aligned with the USCO’s view that works wholly generated by Artificial Intelligence are not copyrightable. In reading through the entirety of the report, it is clear that the Office appreciates that some elements of AI-assisted works will be copyrightable, but believes that the level of human control over the AI output will be central to the copyrightability inquiry (“Whether human contributions to AI-generated outputs are sufficient to constitute authorship must be analyzed on a case-by-case basis.”) (“Based on the functioning of current generally available technology, prompts do not alone provide sufficient control.”) (Report, page iii)
The Office’s report does provide some useful clarity. At the same time, it takes some positions that fail to adequately address the complexity of AI-generated works. Below, we will unpack a number of elements of the report that are noteworthy.
Modifying or arranging AI-generated content
The report makes it clear that the USCO views selection and arrangement of AI-generated work as a viable path towards copyrightability of works where AI was an element in the creation of the work. In 2023, when reviewing the graphic novel Zarya of the Dawn, “the Office concluded that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright.” (Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 2) Thus, authors who incorporate AI-generated work into a larger work will often be successful in registering the whole work, but will typically need to disclaim any AI-generated elements.
Alternatively, an author who modifies an AI-generated work outside of the AI environment (e.g., an artist who uses Photoshop to make substantial modifications to an AI-generated image), will usually have a path to copyright registration with the USCO.
The USCO takes the position that most AI-assisted works are not copyrightable
Unlike an AI-generated image later modified manually by a human (which may be copyrightable), when prompt-based modifications to AI generated works are performed entirely within the AI environment, it is clear that the USCO is reluctant to view the resulting work as copyrightable.
Here, the Office’s position regarding Jason Allen’s attempts to register copyright in the two dimensional artwork Théâtre D’opéra Spatial is illuminating. In developing the image using Midjourney, Allen claimed to have used over 600 text prompts to both generate and alter the image, and further used Photoshop to “beautify and adjust various cosmetic details/flaws/artifacts, etc.,” a process which he viewed as copyrightable authorship. In denying his claim, the Office responded that “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.” (88 FR 16190 – Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, page 16192).
Within the report, there is no direct examination of the Théâtre D’opéra Spatial copyright claim and lessons to be learned from it. This is likely due to ongoing litigation between Allen and the USCO. While the USCO has significant practical influence on what materials are protectable under copyright, ultimately the decision falls to the courts. So, this suit and others like it will be important to watch. Still, the lack of a deeper dive into such a real-world example is unfortunate—such examples offer fertile territory for exploring the boundary lines between copyrightable AI-assisted works and those that will remain uncopyrightable.
The report offers a sense of possibility with regard to copyrightable AI-assisted works
Yet, the Office also acknowledges that there are remaining unanswered questions (“So I know that everyone in their particular area of creativity is looking for, you know, more examples and brighter lines. And I think at this point in time, we’re going to be learning as everyone else is learning…we will be providing more guidance as we learn more.”) (Webinar Transcript, Robert Kasunic, page 10) This recognition that the USCO, like everyone, is still learning is refreshing and welcome, given that it’s fairly easy to see that there are murky waters all around. AI-generated works are already frequently a complex hybrid of AI expression and human expression.
What are some of these questions?
The technology is still developing and it seems likely that the legal complexity will become even more pronounced as sophisticated generative AI evolves to respond to fine-grained feedback from users, while also offering expression and suggestions that many users will ultimately adopt. Navigating this complexity will be challenging and will require answering a fundamental question: what is the threshold level of human control over AI-generated expression that is necessary as a prerequisite for copyright protection?
Similarly, what standards might the Copyright Office or the courts develop to prove sufficient human authorship when it is intermingled with AI-generated content? The copyright registration process currently requires very little information and no documentation related to this question. For now, creators don’t have clear guidance on what types of documentation will be most effective if a future dispute arises.
To the extent that protection does exist in human-guided, but AI-produced content, how will or should the courts determine what are uncopyrightable, AI-generated elements in what will appear to users as a single unified work? Separating human expression that is enmeshed and embedded within uncopyrightable AI expression will require some framework for distinguishing the two in cases of infringement. Although the courts have already developed methods that may shape this (selection, filtration, abstraction, for example) it remains far from clear whether such tests will perform adequately for AI-produced content
We will be watching developments in this space closely and will continue to advocate for reasonable and flexible approaches to copyrightability that align with the practical realities of authorship in an emerging technological landscape.
