photograph

Judge Howell in the District Court for the District of Columbia (USA) has rejected Dr Thaler’s attempt to register copyright in “A Recent Entrance to Paradise”.

Dr Thaler – well-known for his attempt to obtain patent protection for some kind of “fractal” bottle “invented” by DABUS – attempted to register[1] a copyright in the United States for “A Recent Entrance to Paradise”:

In his application to the Register of Copyrights, Dr Thaler stated the work had been “autonomously created by a computer algorithm running on a machine” – an AI which Dr Thaler named “Creativity Machine” – and nominated himself as the owner of the copyright in the computer-generated work “as a work-for-hire the owner of the Creativity Machine.”

The Register of Copyrights rejected the application on the basis that copyright law requires a human author and the “Creativity Machine” was not human.

Dr Thaler applied for administrative law review. Judge Howell affirmed the Register’s ruling.

Judge Howell followed a number of earlier decisions which required a human author. Her Honour noted (e.g. slip op. 10):

The act of human creation—and how to best encourage human individuals to engage in that creation, and thereby promote science and the useful arts—was thus central to American copyright from its very inception. Non-human actors need no incentivization with the promise of exclusive rights under United States law, and copyright was therefore not designed to reach them.[2](emphasis supplied)

Judge Howell’s ruling, however, is very narrow.

The fact that the case was an administrative law review is significant. As the case was an administrative law review, the only question was whether the Register acted arbitrarily, capriciously or otherwise in violation of the Administrative Procedure Act on the basis of the administrative record before the Register.

On that basis, the case failed.

In the course of the proceeding before Judge Howell, Dr Thaler attempted to introduce new facts (which may seem familiar to those of you following the patent debate). Dr Thaler devoted a “substantial portion” of his submissions to various theories about how ownership of any copyright transferred to him by operation of the “work made for hire” or common law property principles. (Slip op. footnote 1):

[Dr Thaler] elaborates on his development, use, ownership, and prompting of the AI generating software in the so-called “Creativity Machine,” implying a level of human involvement in this case entirely absent in the administrative record. ….

These additional facts were irrelevant on the administrative law review presented (Slip op. 14):

Plaintiff’s effort to update and modify the facts for judicial review on an APA claim is too late. On the record designed by plaintiff from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. In the absence of any human involvement in the creation of the work, the clear and straightforward answer is the one given by the Register: No.

If Dr Thaler’s submissions about his development, use, ownership and prompting of “Creativity Machine” had been relevant, it might possibly lead to a different conclusion.

As noted above, Judge Howell did opine that non-human actors do not need the incentivization of exclusive rights to generate materials. But Judge Howell also noted that the law had developed to recognise copyright in the “mechanical reproduction” of a scene by a camera because that reproduction resulted from “human involvement in, and ultimate creative control over, the work ….”[3]

Judge Howell noted that a case raising issues such as those Dr Thaler belatedly attempted raise would give rise to complex issues:

Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works. The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an “author” of a generated work, the scope of the protection obtained over the resultant image, how to assess the originality of AI-generated works where the systems may have been trained on unknown pre-existing works, how copyright might best be used to incentivize creative works involving AI, and more.[4]

All of these considerations seem likely to be relevant under Australian law for the subsistence of copyright in original works.[5]

In her letter rejecting the “Zarya of the Dawn” application, the Register did reject the claim to copyright made on the basis of the sort of facts Dr Thaler wished to raise.

I guess we can expect Dr Thaler to seek to register some new production by the “Creativity Machine” with a more extensive record.

Stephen Thaler v Shira Perlmutter (DCDC 23 Aug 2023 Case 22–1564)

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1. The USA is one of the very few countries which operate a system to register copyright. Even in the USA, registration is not madatory but, in the case of “US Works”, registration is a requirement before an infringement action can be brought in the USA and also to qualify for statutory damages: 17 USC §411 and §412. 17 USC [§101][101] defines “United States work” to mean: (a) a published work that is first published in the United States; first published simultaneously in the United States and another treaty party or parties, whose law grants a term of copyright protection that is the same as or longer than the term provided in the United States; first published simultaneously in the United States and a foreign nation that is not a treaty party; or first published in a foreign nation that is not a treaty party, and all of the authors of the work are nationals, domiciliaries, or habitual residents of, or in the case of an audiovisual work legal entities with headquarters in, the United States; (b) an unpublished work where all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States; or (c) a pictorial, graphic, or sculptural work incorporated in a building or structure that is located in the United States. So, if you publish your work first overseas and not simultaneously in the United States and the authors are not US citizens or residents, the obligation to register will not usually apply. See generally Circular 1. ?
2. Footnote 2 in the Opinion also includes a fun quote from Justin Hughes, Restating Copyright Law’s Originality Requirement, 44 COLUMBIA J. L. & ARTS 383, 408 “this debate is an unnecessary detour since “[t]he day sentient refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the least of our problems.”  ?
3. “A camera may generate only a “mechanical reproduction” of a scene, but does so only after the photographer develops a “mental conception” of the photograph, which is given its final form by that photographer’s decisions like “posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation” crafting the overall image. Human involvement in, and ultimate creative control over, the work at issue was key to the conclusion that the new type of work fell within the bounds of copyright.” citing Burrow-Giles Lithographic Co. v. Sarony 111 U.S. 53, 59 – 60 (1884).  ?
4. (Slip op. 13) citing a letter from Senators Tilllis and Coons to the Director of the USPTO and the Register of Copyrights calling for the establishment of a national commission on AI.  ?
5. See e.g Telstra v PDC at [118] – [119] and [169].  ?