Court Finds Autonomously Generated Artwork Is Not Eligible for Copyright

“A Recent Entrance to Paradise” created and named by the image generator DABUS via Stephen L. Thaler.

By Jessica Neer McDonald, Esq.

The court sides with the U.S. Copyright Office that human authorship is an essential part of a valid copyright claim in today’s Thaler v. Perlmutter summary judgment order.

At issue on the motions for summary judgment filed by each party was whether work autonomously generated entirely by an artificial intelligence system should be eligible for copyright.

Plaintiff Stephen Thaler owns the Creativity Machine, a system created by Thaler that generated a piece of visual art on its own accord called "A Recent Entrance to Paradise." In attempting to register the work with the U.S. Copyright Office, the author was identified as the Creativity Machine and Thaler the claimant "as a work-for-hire to the owner of the Creativity Machine." He also explained in the application that the work had been "autonomously created by a computer algorithm running on a machine."

The court focuses on the “autonomously created” aspect in finding the lack of human involvement in the creation of the work. This absence of human involvement decisively influences the court's decision regarding the work's ineligibility for copyright protection. In assessing copyright’s adaptability with technologies, the court asserts human creativity is nonetheless the “sine qua non at the core of copyrightability, even as human creativity is channeled through new tools or into new media,” and calls human authorship a “bedrock requirement of copyright.” The court primarily relied on an 1884 Supreme Court decision upholding the constitutionality of an amendment to the Copyright Act to cover photographs and other subsequent cases, the plain text of the Copyright Act, and the history of copyright itself.

When addressing Thaler’s assertions regarding the transfer of the copyright to him, the court finds these arguments as “putting the cart before the horse.” In particular, the transfer concerns to whom a valid copyright should have been registered, which is determined after concluding whether valid copyright had ever existed in the work. In other words, property transfer cannot be implicated where there is no property right to transfer in the first instance.

In examining the Copyright Act, whether non-human sentient beings may be covered by “person” such act is referred to as “only fun conjecture for academics.” The court goes on to declare the issue as unnecessary given that “the day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems.”

Reviewing the history of copyright itself, the court comments, “[n]on-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore no designed to reach them.”

So it remains, how much human input is necessary? The court recognizes new frontiers in copyright and related unanswered questions as artists utilize AI in their creation toolbox, but differentiates the case at hand as not being nearly so complex. While Thaler asserts that he

• “provided instructions and directed his AI to create the Work”

• “the AI is entirely controlled by [him],” and

• “the AI only operates at [his] direction,”

these facts contradict the administrative record that the court is claimed to be limited to procedurally.

Accordingly, the court grants the U.S. Copyright Office’s cross-motion for summary judgment and denies Thaler’s motion for summary judgment.

United States District Court for the District of Columbia Memorandum & Opinion:

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