On February 14, 2022, the Review Board of the United States Copyright Office (the “Board”) refused copyright registration (for the second time) of a two-dimensional artwork entitled “A Recent Entrance to Paradise.” Although the work was an original work fixed in a tangible medium of expression, the Board found that it could not be registered due to a lack of human authorship.
Steven Thaler originally filed for copyright registration of the artwork in November 2018, which the Board refused in August 2019. In September 2019, Thaler requested reconsideration of the refusal, claiming that that “the human authorship requirement is unconstitutional and unsupported by either statute of case law.”
In Thaler’s original application, the author was listed as the “Creativity Machine” and Thaler claimed the artwork was a work-for-hire so that the copyright would belong to the owner of the Creativity Machine, himself. Thaler did not claim that there was any human authorship involved in the creation of the artwork and “provided no evidence on sufficient creative input or intervention by a human author.” Therefore, the only issue before the Board was whether the requirement of human authorship is unconstitutional. The Board determined that for reasons discussed below, human authorship is a requirement for copyright registration and its conclusion is supported by statute, judicial precedent and longstanding Copyright Office practice.
Copyright Act and Previous Cases:
Under Section 102(a) of the US Copyright Act, “copyright protection subsists… in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”
Authorship is not defined in the US Copyright Act, but that does not mean that the scope of the term is unlimited. The concept of an author needing to be human dates back to 1884. In Burrow-Giles Lithographic Co. v. Sarony, the Supreme Court found that, although a camera was technically producing a photograph, the photograph is eligible for copyright protection by the photographer as the author of the photograph. 111 U.S. 53, 56 (1884). The Court held that an author is “he to whom anything owes its origin; originator; maker” and referred to authors as human. Id. At 57-59, 60-61.
Various circuit courts have held that human authorship is required for copyright protection. Works created by the following entities were denied copyrightability; (i) divine and non-human spiritual beings, (ii) monkeys and (iii) nature. See respectively Urantia Found v. Kristen Maaherra, 114 F.3d 955, 957-59 (9th Cir. 1997), Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018) and Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011). The Board found that these cases revealed a consistent trend that non-human expression is ineligible for copyright protection. Note, however, that no court has yet decided a case where artificial intelligence was claimed to be the author of a work.
The Board found that Thaler’s petition “amounts to a policy argument in favor of legal protection for works produced solely by artificial intelligence. He cites to no case law or other precedent that would undermine the Office’s construction of the Copyright Act.” There is, however, caselaw in the U.S. relating to attributing the output and decisions of algorithms to their human authors for First Amendment purposes. The Southern District of New York stated in 2014 that search algorithms (agents) are written by humans. More specifically, those algorithms “inherently incorporate the search engine company engineers’ judgments about what materials” to include in search results. Therefore the First Amendment applied, protecting the search engine’s right to exclude certain results. Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014).
In the current matter, the Board did not determine the circumstances under which human involvement in the creation of machine-generated works would be the statutory criteria for copyright protection. According to the Copyright Office’s Compendium (Third) § 313.2, the “crucial question” of human authorship is whether a computer is “merely being an assisting instrument” or “actually conceive[s] and execute[s]” the “traditional elements of authorship in the work.” Until a court is presented with a case specifically regarding a work made by both man and machine, it is almost impossible to determine the exact amount of human authorship needed to register this kind of work. For the time being, if you plan to use computer programs that will produce machine generated works, consider incorporating as much human involvement as possible to give yourself the best chance at copyright registration for the final product.