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IP/Entertainment Case Law Updates

Second Request for Reconsideration for Refusal to Register a Recent Entrance to Paradise

Copyright Review Board affirms U.S. Copyright Office’s decision to deny application to register copyright claim in two-dimensional artwork created entirely by computer algorithm.

Steven Thaler filed an application with the U.S. Copyright Office to register a copyright claim in a two-dimensional artwork. In the application, the author of the work was identified as the “Creativity Machine” and Thaler was listed as the claimant along with the transfer statement “ownership of the machine.” Thaler noted that the work “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.” Thaler did not assert that the work was created with any input from a human author. The Copyright Office refused to register the claim, finding it lacked “the human authorship necessary to support a copyright claim.”  

Thaler subsequently requested reconsideration, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.” The Office found Thaler’s arguments unpersuasive and affirmed its earlier decision. It determined that a work is entitled to copyright protection only if it is created by a human author, and it added that Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” 

Thaler filed a second request for reconsideration on the same grounds. After reviewing the application, deposit copy and relevant correspondence, along with the arguments in the second request for reconsideration, the Copyright Review Board affirmed the Copyright Office’s denial of registration. 

The controlling issue was whether human authorship is a prerequisite for copyright protection in the United States. The Board determined that courts, including the U.S. Supreme Court, interpreting the Copyright Act have uniformly determined that it is and that the nexus between the human mind and creative expression is a prerequisite for copyright protection and registration. 

The Board further found it persuasive that federal agencies have repeatedly declined to extend copyright protection to works created by nonhuman entities. Notably, the National Commission on New Technological Uses of Copyrighted Works (CONTU), a body tasked with evaluating the impact of automatic systems on the copyright system, concluded that “the eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.”

The CONTU report is consistent with the Office’s previously articulated position that “the crucial question appears to be whether the ‘work’ is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional element of authorship in the work . . . [was] actually conceived and executed not by man but by a machine.”

Thaler also argued that artificial intelligence can be an author under copyright law because the work-for-hire doctrine allows for “non-human, artificial persons such as companies” to be authors. The Board rejected this argument, noting in particular that a work-for-hire relationship requires either an employment relationship or a written agreement between parties that the work is for hire. Since an algorithm cannot enter into a binding employment or work-for-hire requirement, it cannot create works for hire. 

Summary prepared by Linna Chen and Ava Badiee

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