DC Circuit Rejects Copyright Registration for AI-Generated Art

On March 18, the DC Circuit issued an opinion in Thaler v. Perlmutter, holding that AI cannot be an author for purposes of a US copyright registration. The plaintiff in the case is Dr. Stephen Thaler, an AI scientist who has been at the forefront of a series of IP test cases worldwide about whether AI can be an author or inventor for purposes of copyright and patent law.

The latest case involved an attempt to register a copyright in an AI-generated picture, “A Recent Entrance to Paradise.” The listed author was “Creativity Machinery,” a generative artificial intelligence created by Dr. Thaler. The Copyright Office denied registration, following its long-standing policy of requiring a work to be authored in the first instance by a human. (Certain works made by a human for another party, such as a corporation, may be considered as “works made for hire,” with the commissioning party considered the author.) Dr. Thaler sought review of the denial in court, eventually ending up at the DC Circuit.

The DC Circuit saw three main questions raised in the case: 1) whether the Copyright Act requires human authorship in the first instance; 2) whether the Copyright Clause of the Constitution requires human authorship; and 3) whether Dr. Thaler could nonetheless be considered the work’s author by virtue of making and using Creativity Machinery. In a narrow ruling the DC Circuit reached only the first question, finding as sufficient to resolve the case that the Copyright Act requires a human author.

The court looked at the language of the Copyright Act of 1976, and found several provisions that identify authors as human beings, and others make sense only if authors are human beings. Machines are incapable of doing some things assumed of authors by the Copyright Act, such as signing papers, exhibiting intentionally, and having spouses or descendants that survive their death. The court also found that the legislative history of the Copyright Act supported the view that authorship was something that required humans, and that machines were treated separately (and not as authors).

That was enough to decide in the present case that Dr. Thaler was not entitled to a US copyright registration. The Copyright Office had argued further that human authorship was a requirement of the Constitution’s Copyright Clause, Article I, Section 8, Clause 8, which gives Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The court did not make a ruling on this issue, finding that its interpretation of the Copyright Act sufficient to decide the case.

Dr. Thaler also argued in the alternative that he could be considered an author 1) under the work-made-for-hire doctrine, or 2) as the maker and user of Creativity Machinery. The former was dismissed in that the work-made-for-hire doctrine requires human authorship in the first instance. As for the second contention, the DC Circuit found that Dr. Thaler had waived this argument by not making it during consideration of his application by the Copyright Office. This finding by the court does not preclude another applicant making a similar argument in the future.

Dr. Thaler’s failure in registering a copyright with an AI author mirrors his failed attempts in many jurisdictions to obtain patents with AI inventors. Some of these were raised in previous Renner Otto blog posts, such as his attempts in the UK.  Patent applications with AI inventors have been turned away in the US, Canada, Japan, Europe, China, UK, Germany (after some initial success at a lower court), Australia (again after initial success in front of a single judge), Taiwan, and New Zealand.  The only success for Dr. Thaler has been in South Africa, which in 2021 issued a patent filed by a team including him, listing only AI as the inventor.

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