In a decision that is unsurprising but important, the DC Circuit Court of Appeals affirmed that “authors,” as defined in U.S. Copyright Act, are human beings and not machines that can autonomously generate works. I say unsurprising because nothing in history or statute should have led the court to any other conclusion, and indeed the opinion can be summed up thus: “…the text of multiple provisions of the statute indicates that authors must be humans, not machines.”
Dr. Thaler, a computer scientist, developed a generative AI (GAI) he calls Creativity Machine, which autonomously generated a visual work for which he applied for a claim of copyright with the U.S. Copyright Office. Thaler disclosed that the work was wholly created by the machine, and on the basis that copyright can only attach to works made by humans, the Office rejected the application. Thaler sued, arguing that the Office was asserting a policy not found in the statute or the constitutional foundation for copyright. He lost in the district court, and the appellate court has now affirmed that ruling. (See earlier posts.)
Specifically, the court cites several operative provisions of the Copyright Act that would be nonsensical if machines were “authors.” “Machines do not have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures,” the opinion states. This summary refers to the right to own any kind of property, duration of copyrights, inheritance of copyrights, jurisdictional enforcement of copyrights, incentive to create works, and the right and authority to transfer copyrights.
None of those rights or capabilities apply to non-humans, and non-humans do not have standing in court to adjudicate conflicts over such matters. Consequently, U.S. copyright law would unravel if machines were “authors,” which would, notably, moot Dr. Thaler’s claim that his GAI called Creativity Machine is legally the “author” of the visual work he sought to protect. “Numerous Copyright Act provisions both identify authors as human beings and define ‘machines’ as tools used by humans in the creative process rather than as creators themselves,” the opinion states. Imagine the opposite conclusion and Creativity Machine could be named as a plaintiff in an infringement suit. Chaos ensues, and not just for copyright.
As to Dr. Thaler’s theory that under the work made for hire (WMFH) doctrine, he could claim copyright in the work generated by the AI he owns, the court is clear that this misreads the principle. In plain terms, under WMFH, rights transferred to the hiring party must exist in the first place, but those rights can only be vested in a human being upon creation/fixation of a work. No human author means there are no rights to transfer to a hiring party.
Although the Thaler decision is not surprising, it is important because it reaffirms a core doctrine as both case law and policy evolve in response to GAI. By affirming the boundary that 100% machine-generated expression is not protected, this solidifies the framework in which courts to do what they often do in copyright cases—namely to separate protected expression from unprotected elements in a given work.
The more compelling and trickier question as to what is protected and not protected when an “author” uses a generative “machine” as a tool is now active in the District Court for the District of Colorado. As discussed in this post, artist Jason Allen presents a plausible argument that he used Midjourney as a tool to create and fix his mental conception of a visual work of expression. Arguably, Allen v. Perlmutter will be the first case to write early guidance for the use of GAI to create works that may be protected. As such, that outcome just might be surprising and important.
Photo by: Designer491
