Last week, oral arguments were presented before the D.C. Circuit Court of Appeals on the question of whether copyright protection is conditioned on human authorship. Dr. Stephen Thaler, developer of a Gen AI he calls “Creativity Machine,” submitted a visual work made entirely by that machine to the U.S. Copyright Office for registration in 2022. He disclosed the fact that the image was solely produced by GAI, and the Copyright Office rejected his claim on the basis that copyright only protects works created by humans.
Thaler contested the USCO rejection, and when the Office stuck to its guns, he filed suit (see Thaler v. Perlmutter) claiming that the “human authorship” doctrine is an invented regulation because it is not stated anywhere in the Copyright Act. He further argues that the work made for hire (WMFH) doctrine, which is part of copyright law, should be read to find that the owner of a GAI may claim copyright in the outputs of that system. Failing that, he presents theories analogizing copyright rights to laws governing the ownership, transfer, or sale of other forms of property. Thaler lost in the district court and then appealed to the D.C. Circuit.
Never read too much into oral arguments, but the panel did not sound very impressed with the theories presented by Dr. Thaler’s counsel. But setting aside those tea leaves and the still-evolving doctrine regarding works produced by a combination of human creativity and GAI, it is essential that the human authorship doctrine itself should not be disturbed by any court or Congress. Doing so would render copyright (and possibly other laws) meaningless.
The Purpose of Copyright
A critical flaw in Thaler’s reasoning implies that copyright exists for the purpose of causing “creative” works to be manufactured by any means. This is wrong. Even if we only begin with the IP clause of the Constitution, the most basic and widely accepted purpose of copyright is incentive. “Authors” of “writings” are given exclusive rights (with certain limits) to control their works so as to incentivize the production and distribution of those works. In fact, copyright skepticism leans hard on the “devil’s bargain” view that rights should be more limited than they are. And while I have called that view cynical, I would hope those same skeptics agree that their entire critique evaporates without the human authorship doctrine.
Machines are not incentivized to create, and copyright does not encompass an incentive to the human to invent a machine that makes artificial “writings.” If anything, that would be the purpose of patent law. Moreover, Thaler’s reasoning moots the copyright rights he seeks to claim through registration. At scale, a mere handful of corporate-owned AIs autonomously generating millions of works implies a market in which few, if any, of those works has any monetary or cultural value. But as a legal matter, the rights attached to each work would likely be unenforceable because several judicial doctrines and tests are warped by the hypothetical case in which one AI has allegedly infringed the rights of another AI.
The “Human Condition” is Not in the Copyright Act
The autonomous AI cannot produce “writings” as a matter of law because the AI is not an “author” as a matter of law. Far from an invented rule by the Copyright Office, “authors” are humans by all historical, statutory, judicial, and common-sense reasoning. As stated in my last post about this case, while it is true that the Copyright Act does not explicitly define “authors” as humans, this is also true of other statutes (e.g., labor laws) because it would be redundant to the point of absurd to imagine such laws applying to parties other than humans. When laws say “voters,” “employees,” “victims,” “perpetrators,” etc., the consistent absence of the clarification “human” is not an indication that these terms might apply to “cats,” “monkeys,” or “machines.”
The Copyright Office may be unique among agencies in explicitly stating that its specialty in law is about protecting “human authorship,” but this guidance exists because the Office recognized, long before GAI, that a registration applicant might present a work that appears “creative” but which he did not create. An example listed in the USCO Compendium is a “piece of driftwood shaped by the sea” into what might look like an aesthetic sculptural work. Hence, it is a short logical leap to analogize pleasant looking objects shaped by nature to works output solely by a GAI like “Creativity Machine.”
Thaler’s Work Made for Hire Theory
The work made for hire (WMFH) principle is a means by which copyright rights are transferred from the author to a business entity. Because copyright rights are vested automatically in the author the moment a work is fixed in a tangible medium of expression, the author must convey in writing a transfer of those rights—even to a business she herself owns in its entirety. That transfer may be executed prior to works being created, as indeed it would be with an employment contract, but this does not alter the fact that what is transferred in advance are rights which can only vest in the human employee who posses the agency to both create works and execute a transfer of her rights.
More broadly, although it is true that non-human entities called “corporations” are “persons” for the purpose of administering various laws, and it’s true that entities can own copyrights, the corporate fiction does not alter the fact that humans remain at the center of activity regarding various rights and liabilities. For instance, if the human managers of a company use machines to engage in criminal copyright infringement, it is the humans, not the machines, who will be sent to jail.
As a threshold matter, nothing output by the autonomous AI is a work of authorship because no rights were, or could ever be, automatically vested in the machine upon fixation of those works. There simply are no copyright rights to be transferred. The fact that a corporate entity invents and/or owns the GAI is irrelevant and is little more than a distraction as an analogy. Human employees or contractors are not owned by their employers, which brings us to another inapt comparison some have made.
Let’s Leave Slavery Out of This
During oral arguments, one of the judges asked whether the creative works of slaves were ever protected by copyrights owned by masters. It’s an analogy I’ve heard raised before, and although I do not presume to read anything into the judge’s question, the comparison is as ugly as it is unfounded. A slave is a human being robbed of all agency, and even if one could find evidence, under that ancient and barbaric practice in American law, that a slave’s “writing” was claimed by a master for copyright protection, this would say nothing about the “human authorship” question presented in Thaler. If nothing else, the hypothetical theft of creative expression from the slave by a master did not inform the WMFH doctrine in modern copyright law. Meanwhile, a GAI neither possesses agency to rob nor rights of any kind to infringe. The AI is neither slave nor employee any more than Dr. Thaler’s coffee maker.
Analogies to Other Property
Dr. Thaler argues that ownership of the GAI may be analogized to the farmer who is, of course, the first owner of the fruits of his apple orchard. Here, a court should make short work of the fact that copyright law distinguishes physical property (chattel) from copyright rights. For instance, the buyer of a painting does not necessarily purchase the copyright rights in the expression fixed in that painting. The market value of certain original works of modern art is unrelated to the fact that some of those works may not qualify for copyright protection at all. The value of a first edition book as a rare object is unrelated to the fact that the expressive work in that book may be long in the public domain. Examples abound.
Under these same principles, Dr. Thaler is absolutely permitted to print a copy of the AI-generated image called “An Entrance Into Paradise” and to sell that print as a physical object in any market he chooses. That print and any subsequent prints he makes comprise his physical property just like the farmer owns his apples before sale. But just as none of those apples embodies any copyrightable expression, the same is true of “A Recent Entrance to Paradise,” even if the observer sees in that image something we call “art.”
Put another way, if the skin of one mutant apple inexplicably manifests an image of the orchard where it was grown, the farmer is free to sell this marvel to the highest bidder, but he has no claim of copyright in the image itself. He can print tee shirts and mugs and change his orchard’s name to capitalize on the miracle apple. He can obtain a trademark on the image used in commerce and even start a Cult of the Miraculous Apple, if he is so inclined. But just like the sea-sculpted piece of driftwood, the phenomenon of the image on the apple is not a work of “authorship” under copyright law.
Big Tech’s Big Lie
To those tech companies who might advocate Dr. Thaler’s position, it is hard not to admire their gall. Not only has the tech industry spent about 20 years trying to eradicate the copyright rights while claiming to support creators, but it has done so behind a wall of separation between the “conduct” of its machines and potential liabilities stemming from that “conduct”—even for dangerous design flaws. By Silicon Valley’s logic, if a social media algorithm motivates a teen suicide, the tech company should be shielded as a neutral party, but if the same company’s AI generates some music, the company should own copyrights in that work as if the AI made “creative choices” at the direction of the company’s owners. These and other hypocrisies are on full display as we confront artificial intelligence.
