The Copyright Office said Wednesday in its response brief to Stephen Thaler's appeal that the U.S. Supreme Court "has recognized human creativity as the touchstone of authorship" since the 19th century. Further, the agency said the text of the Copyright Act shows that Congress' intent was to protect human-created works.
"It measures a copyright's term by the author's natural life and death. Several sections reference an author's family or heirs. Still others assume an author's ability to execute employment arrangements and legal contracts," the Copyright Office said. "These provisions plainly contemplate an author's humanity. And they would be nonsensical if they applied to a 'machine' that — as Dr. Thaler concedes — has no legal rights, no life or death, no family, and no legal capacity to be an employee or to enter binding agreements."
Thaler's case highlights the present tension surrounding registering copyrights for AI-created art as technology has evolved and become more widespread, making it easier for artists and non-artists to create eye-popping works.
The Copyright Office has rejected other attempts to register AI-generated art, 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.
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."
Thaler argued 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." He also said the copyright does allow for non-humans authors, citing corporations as an example of entities that have registered copyrights.
The Copyright Office did not dispute that, but said it does not mean that humans are not behind the copyrighted works.
"The doctrine allows employers and proprietors — including nonhuman entities like corporations — to be 'considered the author' of a copyrighted work by operation of law," the agency said. "But it does not mean that Congress contemplated that nonhuman entities could actually be the 'authors' of a work, as opposed to merely being 'considered the author.'"
The Copyright Office also shrugged off Thaler's argument that anonymous works, pseudonymous works and works for hire have all been eligible for registration.
"Dr. Thaler's reliance on the provisions concerning 'anonymous' and 'pseudonymous' works establishes only the unremarkable point that a work need not have an identified human author. But that does not mean that the work need not have a human author at all," it said.
Thaler's counsel, Ryan Abbott of Brown Neri Smith & Khan LLP, said Thursday the government agency's brief simply repeats arguments it has made previously.
"But it really doesn't address the fact that American jurisprudence has a long history of very well-settled non-human authorship in which corporations can be authors and no contribution by a natural person is required to be disclosed at all," he told Law360.
The Copyright Office declined to comment Thursday.
Thaler is represented by Ryan Benjamin Abbott and Timothy George Lamoureux of Brown Neri Smith & Khan LLP.
The 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 Adam LoBelia.
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