The work to the left entitled “A Recent Entrance to Paradise” is an AI-generated image that is meant to simulate the experience of a dying brain. Impressive? Yes. Thought-provoking? Yes. A little creepy? Most definitely yes. But where do the rights in the work lie? After all, the work fits the prerequisites for copyright protection: (1) it is an independently created original work; (2) that is fixed in a tangible medium (as it is on your screen currently); and (3) it contains at least some minimal degree of creativity. The AI that created the work has to be the technical “owner” of the copyright in the work, right? Think again.

Artist and researcher Stephen L. Thaler developed the AI that created this image and, on November 3, 2018, he filed a copyright application with the U.S. Copyright Office to try and protect the work. In his application, Thaler noted that “A Recent Entrance to Paradise” was a two-dimensional “work made for hire” whose author was the “Creativity Machine”—noting specifically that the work was autonomously created by a computer algorithm running on a machine.

The Copyright Office initially refused registration in August 2019 because the work lacked the human authorship necessary to support a copyright claim. Let’s dive into that a bit. The often overlooked (and seldom invoked) “human authorship requirement” requires that a work filed for copyright registration be created by a human being, as U.S. copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” In re Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because U.S. copyright law is limited to “original intellectual conceptions of the author,” the Copyright Office must refuse to register an application if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884). Thus, the Copyright Office “will not register works produced by nature, animals, or plants[,]” or “a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.” U.S. Copyright Office, Compendium 300: Copyrightable Authorship: What Can Be Registered § 313.2. The Copyright Office gives the following examples of works that fail to satisfy the human authorship requirement:

  • A photograph taken by a monkey.

  • A mural painted by an elephant.

  • A claim based on the appearance of actual animal skin.

  • A claim based on driftwood that has been shaped and smoothed by the ocean.

  • A claim based on cut marks, defects, and other qualities found in natural stone.

  • An application for a song naming the Holy Spirit as the author of the work.

  • Works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. The crucial question is whether the work is basically one of human authorship, with the computer or other device merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.

Returning to our hero, Thaler requested reconsideration of the Copyright Office’s initial refusal of “A Recent Entrance to Paradise,” which the Copyright Office soundly rejected on the grounds that it was not inclined to depart from its longstanding interpretation of the Copyright Act and Supreme Court precedent that copyright protection is limited to works created by human authors. Thaler then filed a second request for reconsideration, arguing that artificial intelligence can be an author under the “work-made-for-hire” doctrine, which permits non-human, artificial persons, such as companies, to be authors. The Copyright Office Review Board found this argument to be unavailing, and it affirmed the initial denial of the registration, reasoning in its February 14, 2022 opinion that: “Courts interpreting the Copyright Act, including the Supreme Court, have uniformly limited copyright protection to creations of human authors[,]” and that the Compendium of U.S. Copyright Office Practices and longstanding Copyright Office practice have required human authorship for registration. Further:

[a] work made for hire must be either (A) prepared by an employee or (B) by one or more parties who expressly agree in a written instrument that the work is for-hire . . . [i]n both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. The “Creativity Machine” cannot enter into binding legal contracts and thus cannot meet this requirement.

Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Correspondence ID 1-3ZPC6C3; SR # 1-7100387071) (internal citations and quotes omitted). It follows that “[a]utonomous systems are not ‘artificial persons’ because they lack legal personhood.” Id. citing Nadia Banteka, Artificially Intelligent Persons, 58 Hous. L. Rev. 537, 593 (2021). Thus, Thaler’s second request for reconsideration amounted to no more than an unsupported policy argument for protection of works created by artificial intelligence.

 The Copyright Office Review Board’s opinion letter also briefly cited Naruto v. Slater, the famous “Monkey Selfie Case,” in which the People for the Ethical Treatment of Animals (PETA) filed suit against a photographer and book publisher for allegedly (1) falsely claiming authorship of selfies that “Naruto,” a six-year-old crested macaque, took using the photographer’s camera; and (2) violating Naruto’s copyright by displaying, advertising, and selling copies of these selfies. The Court dismissed the action, stating that “Naruto does not have standing and cannot state a claim under the Copyright Act . . . [b]ecause the Copyright Act does not confer standing upon animals like Naruto[.]” Naruto v. Slater, No. 15-CV-04324-WHO, 2016 WL 362231, at *1 (N.D. Cal. Jan. 28, 2016), aff’d, 888 F.3d 418 (9th Cir. 2018).

The above cases are bizarre examples of how works may or may not be protected by copyright law—depending on the true identity and creative participation of the supposed author. The world of copyright law is rife with complexities that are sometimes difficult to untangle, so it’s always best to confer with an attorney experienced in copyright law before trying to break new ground in the law.

For more information on this article and this topic, contact Charles Wallace.