Copyright Law Permits Nonhuman Authors, AI Creator Tells DC Cir.

The government’s position that artificial intelligence-produced work can’t have copyright protection ignores “fundamental truths” about the case, as nothing in the law dictates such works aren’t copyrightable, a computer scientist told the DC Circuit.

Stephen Thaler said the US Copyright Office is “straining the language” of the law when it argues his work can’t be copyrighted because its author isn’t human. Thaler’s provided several viable theories for the protection of such works, he said in his reply brief to the US Court of Appeals for the District of Columbia.

The reply concludes briefing and sets up oral argument in the first circuit court battle over the boundaries and parameters of copyright law’s application to AI-generated works. The case could shape ownership rules for creative industries given the rapid proliferation of AI systems and AI-produced work, with rights ownership and ability to enforce those rights hanging in the balance.

The US Copyright Office refused to register Thaler’s two-dimensional art titled “A Recent Entrance to Paradise” because it was generated by a machine. Thaler sued the office, but the US District Court for the District of Columbia ruled against him. It found “courts have uniformly declined to recognize copyright in works created absent any human involvement,” citing cases where copyright protection was denied for celestial beings, a cultivated garden, and a monkey who took a selfie.

Thaler’s opening brief in his appeal said that as the owner, creator, and user of the Creative Machine tool that generated the work, he is the only possible owner of its copyright. He’s either the work’s author, it’s a work for hire because his property produced it, or he has the right of first possession, he said. Corporations have been recognized as authors for more than a century, he argued, while the Copyright Office relies on “dicta from a bevy of cases that pre-date the possibility of AI.”

The fact that employers and proprietors can be “considered the author” doesn’t mean they’re actually the author as humans—not the non-human entities—created the work, the Copyright Office said in its response. The office also pointed out circuit precedents that directly addressed and rejected the possibility of nonhuman authorship. Congress’ Copyright Act updates never undermined the office’s 1966 report stating works created by computers—rather than assisted by them—would be ineligible for protection.

The Copyright Office ignored the plain language of the statute expressly protecting works of nonhuman authors, and relevant case law, Thaler said. Copyright termination rights extend to families of authors, “which nonhuman authors cannot have,” which he argued means the provisions explicitly exclude works-for-hire.

“Concessions based on the non-human nature of at least some authors speaks volumes,” he said.

He also argued the Copyright Office distorted his complaint when it said he waived any contention that AI was acting as his employee to create a work for hire. While his complaint said “an AI is neither a legal employee nor an independent contractor capable of executing a contract” he also said “it functionally behaves as an employee or independent contractor in creating AI-generated works.”

If the AI can’t be an employee despite it not being foreclosed by law, then it’s merely a tool for Thaler to aid his own act of creation, Thaler added.

Brown Neri Smith & Khan LLP represents Thaler.

The case is Thaler v. Perlmutter, D.C. Cir., No. 23-5233, Reply brief 4/10/24.