Artificial intelligence inventor Stephen Thaler appealed to the D.C. Circuit on Monday, seeking to reverse the U.S. Copyright Office's refusal to register an AI-generated artwork titled "A Recent Entrance to Paradise." (Court Documents)
"No language in the act creates a human authorship requirement. To the contrary, non-human authorship has been a fixture of American copyright law for more than a century and there is no requirement to identify any creative contribution by a natural person," Thaler said.
Thaler is appealing a D.C. federal judge's ruling last year that upheld the Copyright Office's rejection of a two-dimensional artwork titled "A Recent Entrance to Paradise," which was made by an AI system Thaler created and dubbed "the Creativity Machine."
In its August 2019 decision, the Copyright Office said it could not register Thaler's work because it lacked "the human authorship necessary to support a copyright claim." Thaler's application said the artwork was "created autonomously by machine."
Thaler is arguing in his appeal that the office is relying "on dicta from a bevy of cases that pre-date the possibility of artificial intelligence having the capability to create copyrightable works."
Since denying Thaler's application, the Copyright Office has rejected several other attempts to register AI-generated works, including a two-dimensional artwork called "Théâtre D'opéra Spatial," which won an award at the 2022 Colorado State Fair. Most recently, the Copyright Office Review Board rejected an application to register an artwork inspired by Vincent van Gogh's "The Starry Night" in December.
Despite those denials, Thaler argued it's possible the Copyright Office has registered AI-created works. There is no requirement that an actual person be named when a company applies for a registration, Thaler argued, and added that "the Copyright Office has not historically had any AI-related disclosures on its registration form, and it has no meaningful way of detecting the use of AI in the creation of a work."
It was not until last year that the Copyright Office updated its registration form to tell applicants to disclose contributions by AI, according to Thaler's counsel, Ryan Abbott of Brown Neri Smith & Khan LLP.
"That is a very recent addition to the form, and people have had AI making creative works for decades," Abbott told Law360 on Tuesday. "People have written to me that they had registrations granted in the 1960s for AI."
The Copyright Office said Tuesday it does not comment on pending litigation.
Thaler said in his appeal brief that his AI system should be listed as the author of the artwork he's seeking to register, with Thaler as the copyright owner "by virtue of well-established property rules." Alternatively, Thaler said he should be listed as the author under the work-for-hire doctrine because he controlled the machine that created the work.
Thaler argued the purpose of the Copyright Act supports protecting AI-generated works.
"Both Congress and the Supreme Court have been clear that copyright exists to benefit the American public by incentivizing the creation and dissemination of creative works, not to directly benefit authors," Thaler said. "Benefit to an author is merely a means to an end to ensure the dissemination and creation of creative works."
Thaler is represented by Ryan Benjamin Abbott and Timothy George Lamoureux of Brown Neri Smith & Khan LLP.
The U.S. Copyright Office is represented by Nicholas S. Crown and Daniel Tenny of the U.S. Department of Justice Civil Division.
The case is Thaler v. Perlmutter, case number 23-5233, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Editing by Michael Watanabe.
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