No Copyright Without a Human: What Thaler v. Perlmutter Means for AI Art

Co-Authored by: Celine Agard

An important requirement of copyright law is the human authorship of original works in a tangible form. The Copyright Office has long established this requirement and has furthermore claimed that “nothing can be considered the ‘writing of an author’ unless it owes it’s “origin to a human agent.” With the rapid use and evolution of artificial intelligence, the legal question of who or what can be considered an author has arisen in the Thaler v. Perlmutter case. In a unanimous decision, a federal appeals court affirmed that art created by artificial intelligence can not be copyrightable in the absence of human authorship and originality.

 This case arose after computer scientist Dr. Stephen Thaler invented a generative artificial intelligence platform named “Creativity Machine” and prompted the platform to create a piece of artwork titled “A Recent Entrance to Paradise.”

A Recent Entrance to Paradise

            There is no evidence that Dr. Thaler himself played a role in the creation of this unique artwork, except for giving the title of the piece. After the artwork was completed in 2012, Dr. Thaler submitted a copyright registration application for “A Recent Entrance to Paradise” to the United States Copyright Office in 2018. In his application, Dr. Thaler listed generative artificial intelligence as the artwork’s sole author, listing himself as the work’s owner, but the Copyright Office denied it, citing to the lack of human creation and originality. Thaler then sought review in the United States District Court for the District of Columbia. He argued that “the Human Authorship Requirement” was unconstitutional and unsupported by case law. Thaler explained that Congress’s power to “protect the ‘Writings’ of ‘Authors’ in the realm of copyright law is broad, and throughout history, copyright law has proven malleable enough to cover works created with modern technologies. He also argued that since “Creativity Machine” was his creation, he should also own the copyright under the work-made-for-hire doctrine because “non-human artificial persons such as companies can already be authors under this doctrine.” The District Court for the District of Columbia affirmed the Copyright Office’s denial and emphasized that “human authorship is a bedrock requirement of copyright.”

           

On March 18th, the United States Court of Appeals for the District of Columbia affirmed the district court’s decision and confirmed the requirement for human authorship in copyrightable works, such as art. In support of the Copyright Office’s decision, the court highlighted several important purposes and doctrines of copyright law. The court took a textual approach to the Copyright Act and a statutory interpretation of what an “author” is. Justice Millett stated that “a copyright vests initially in the author or authors of the work.” Although there is no clear definition of “author” in the act, the court concluded that historical and traditional sources as well as statutory interpretations support the theory that author refers only to a human being. For instance, the Copyright Act of 1976 explicitly refers to machines in the context of “devices” and “processes”—a far cry from authors. The court also concluded that since artificial intelligence lack human abilities such as property ownership, lifespans, domiciles, nationalities and signatures, these platforms can’t be considered human.

           

Lastly, the court addressed Dr. Thaler’s argument regarding the work-made-for-hire provision within the Copyright Act, which allows those who hire creators to be “considered the author” of a copyrightable work.  Judge Millett emphasized that Congress was meticulous in using the word “considered” to intentionally not cover non-human entities in that provision.

           

At bottom, this case reinforces the view that copyright law is intended to preserve human creativity, and that Congress’s intention in promoting the progress of the sciences and useful arts was to protect the creations of artistic works created by humans. Nonetheless, artificial intelligence appears to be here to stay and continues to grow as a powerful tool for the creation of new works, as does the need for clear legal guidance in this burgeoning field. In a world where fears surrounding artificial intelligence keep rising, specifically in creative industries, this decision draws an important line of who is afforded rights of artistic expression.

The content published on this blog is intended for general educational and informational purposes only. Some posts may be authored by law students or legal interns who are not licensed attorneys. All content is reviewed by a licensed attorney before publication. No attorney-client relationship is created by your reading of this blog or by any interaction through it. For advice on a specific legal matter, please consult a licensed attorney in your jurisdiction.