Stephen Thaler said in a brief Wednesday that the government agency cannot avoid the "logical outcome" that if it is correct that a machine is barred from being a legal author, then it still leaves Thaler as the copyright holder because he created "the Creativity Machine" — the AI system responsible for a two-dimensional artwork titled "A Recent Entrance to Paradise."
"Dr. Thaler has consistently claimed the right to the copyright on the work by virtue of his ownership, programming, and use of the Creativity Machine," Thaler said. "And if the Creativity Machine is not itself considered the author of the work, and if it cannot be deemed an employee under the work-made-for-hire doctrine, then the only reasonable alternative is that the Creativity Machine must be regarded as the tool through which Dr. Thaler himself authored the work."
Thaler's brief is a response to the Copyright Office's arguments last month regarding his appeal to the D.C. Circuit, saying that the government has a long history of only registering works by human authors. Thaler is appealing a D.C. federal judge's ruling last year that upheld the Copyright Office's rejection of his AI-created artwork.
Thaler also tried Wednesday to set straight what he called "mischaracterizations" of the record by the Copyright Office, mainly that he had conceded the artwork was autonomously created by the Creativity Machine, and therefore he cannot be the work's direct author.
"Dr. Thaler has consistently argued on the record that, while he does not consider himself the author of the work in the traditional sense of a human being putting pen to paper, he is the undisputed human originator of the work," Thaler said. "He is the creator, owner, programmer, and user of the machine that outputted the work."
Thaler's case highlights the present tension surrounding registering copyrights for AI-created art as the technology has evolved and become more widespread and easy to use.
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 criticized the Copyright Office's interpretation of what is copyrightable, arguing that the agency's position could ultimately hamper creativity.
"In essence, the USCO contends that AI-generated works uniquely fall in some unprotected penumbra outside the law — the Creative Machine is too advanced to be considered merely a tool by which the work was authored by Dr. Thaler, yet the machine is not advanced enough to be considered the author itself," Thaler said. "Twisting the [Copyright] Act and case law in this manner to allow original, AI-generated works to slip through the cracks of copyright law is the opposite of promoting progress, however."
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 Emily Kokoll.
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