IP monitor: US Court of Appeals for DC denies copyright registration for work generated solely by AI author

The Court of Appeals for the District of Columbia (DC) circuit upheld the denial of a copyright application in a work generated solely by artificial intelligence (AI), concluding that the Creativity Machine cannot be the recognized author of a copyrighted work. This is the first appellate-level case in the US to address this issue in the context of generative AI.

Background and procedural history

Dr. Stephen Thaler created a generative AI system he named the "Creativity Machine" that autonomously generated a piece of artwork titled "A Recent Entrance to Paradise." Dr. Thaler applied for copyright registration (SR# 1-7100387071) for this artwork, listing the Creativity Machine as the sole author and himself as the owner, and provided a description of “2-D artwork, Created autonomously by machine.”  

The US Copyright Office denied his application on the basis that only humans can be authors under the Copyright Act. Dr. Thaler challenged this decision both within the Copyright Office and then in the federal district. All of those challenges affirmed the denial of Dr. Thaler’s application. He further appealed to the US Court of Appeals for DC. The sole issue was whether a non-human machine could be an author under the Copyright Act, despite the Copyright Act not defining the word “author.”

The Court of Appeals for DC affirmed the denial of Dr. Thaler’s copyright application finding that the Creativity Machine, as a non-human author, could not be recognized as an author and the Copyright Act requires all works to be authored in the first instance by a human being.

Dr. Thaler also presented two alternative arguments, attempting first to argue that the Creativity Machine is his employee and he was therefore the owner as it was a work-made-for-hire, and second that Dr. Thaler was the work’s author because he made and used the Creativity Machine. Both of these alternative arguments failed as well. The court found that human authorship is still required for a work-made-for-hire, and declined to address the second argument on the basis of waiver before the federal district court.

Court of Appeals’ decision

Three points were central to the court’s holding that authors under the Copyright Act must be human beings:

• The Copyright Act made no sense if “author” was not read to be a human. For example, the term of copyright is tied to the author’s life and death. The Act also: i) refers to an author’s widow and surviving children, ii) requires an author’s signature, iii) refers to an author’s nationality or domicile,” and iv) refers to an author’s intentions. None of these apply to machines. The court also noted that the Act itself distinguished between authors and computer programs or machines that were tools used by humans in the creative process. The court thus found that numerous statutory provisions collectively identify an “author” as a human being.
• The Copyright Office had a long-standing and consistent policy dating back to at least 1966 (and formally adopted in 1973), of interpreting “author” to mean a human being. This policy even predated the Copyright Act of 1976 and Congress would have been aware of this when it enacted the Copyright Act in 1976.
• Precedents from the 7^th and 9^th circuits either expressly or impliedly required human authorship. 

The court also declined to address how much human contribution is required for authorship, i.e., how much AI can contribute to a work because Dr. Thaler had listed the Creativity Machine as the sole author of the work. 

Interestingly, the court noted Dr. Thaler’s submissions that prohibiting machines from being authors would result in less original work. The court explained that machines do not respond to economic incentives (such as those created by the Act), and in any event, the right balance of incentives was an issue for Congress, not the courts. Further, court declined to address whether the US Constitution requires a human author since the issue could be decided squarely on the basis of the Copyright Act itself. 

Significance of the decision

While this decision reaffirms a well-established requirement of human authorship in copyright law, it is the first application to generative AI specifically. That said, Dr. Thaler has been at the centre of a similar debate regarding whether AI can be an inventor under the Patent Act. The court’s decision in this case is consistent with a Court of Appeals for the Federal Circuit decision that held inventors under the Patent Act must also be “natural persons” i.e., human beings.

Implications for Canada

As we previously discussed here, a case regarding whether an AI can be an author is making its way through the Federal Court in Canada. An interesting difference is the AI in the Canadian case (RAGHAV) is registered as a co-author of the work in issue (Suryast) rather than as the sole author as in the Thaler case in the US. While that distinction did not make a difference in a case before the US Copyright Review Board involving the same work, it remains to be seen how these issues will play out in Canada.

For more information, please contact your IP professional at Norton Rose Fulbright Canada LLP.

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