Dude Who Wants Copyrights And Patents On AI-Created Works Loses In Court Again

Stephen Thaler has spent years trying, and almost always failing, to convince both patent and copyright bodies to give him patents and copyrights on works he says are created by AI systems he’s built.

He’s failed at this process. A lot. I mean, really, a lot.

His latest attempt was to sue the Copyright Office and the Register of Copyrights, Shira Perlmutter, over his attempt to get copyright on AI created works. It did not work. Judge Beryl Howell, a former RIAA lobbyist who often does seem willing to go to bat for expanding the boundaries of copyright law, wouldn’t go as far as Thaler wanted, and said pretty clearly that AI-created works are not subject to copyright protection.

As the court explains, Thaler tried to jump multiple steps in arguing for why the copyright on a computer generated work should be assigned to himself as the computer owner. But, the Judge points out, that question is only worth exploring if there’s a legitimate copyright in the first place:

Plaintiff attempts to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer’s work would transfer to him, as the computer’s owner; for example, by operation of common law property principles or the work-for-hire doctrine. See Pl.’s Mem. at 31–37; Pl.’s Reply Supp. Mot. Summ. J. & Opp’n Def.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 11–15, ECF No. 18. These arguments concern to whom a valid copyright should have been registered, and in so doing put the cart before the horse. By denying registration, the Register concluded that no valid copyright had ever existed in a work generated absent human involvement, leaving nothing at all to register and thus no question as to whom that registration belonged.

Judge Howell details, as Thaler argued, that copyright law has changed over time as new developments in creativity have developed, but notes this goes too far:

Copyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here. Human authorship is a bedrock requirement of copyright.

That principle follows from the plain text of the Copyright Act. The current incarnation of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible medium must be done “by or under the authority of the author.” Id. § 101. In order to be eligible for copyright, then, a work must have an “author.”

From there, the discussion mostly follows along with the same discussion that we had over the monkey selfie. Basically, there’s nothing that says that non-humans are covered by copyright law. Because that wouldn’t make any sense at all.

The understanding that “authorship” is synonymous with human creation has persisted even as the copyright law has otherwise evolved. The immediate precursor to the modern copyright law—the Copyright Act of 1909—explicitly provided that only a “person” could “secure copyright for his work” under the Act. Act of Mar. 4, 1909, ch. 320, §§ 9, 10, 35 Stat. 1075, 1077. Copyright under the 1909 Act was thus unambiguously limited to the works of human creators. There is absolutely no indication that Congress intended to effect any change to this longstanding requirement with the modern incarnation of the copyright law. To the contrary, the relevant congressional report indicates that in enacting the 1976 Act, Congress intended to incorporate the “original work of authorship” standard “without change” from the previous 1909 Act. See H.R. REP. NO. 94-1476, at 51 (1976)

The human authorship requirement has also been consistently recognized by the Supreme Court when called upon to interpret the copyright law. As already noted, in Sarony, the Court’s recognition of the copyrightability of a photograph rested on the fact that the human creator, not the camera, conceived of and designed the image and then used the camera to capture the image. See Sarony, 111 U.S. at 60. The photograph was “the product of [the photographer’s] intellectual invention,” and given “the nature of authorship,” was deemed “an original work of art . . . of which [the photographer] is the author.” Id. at 60–61. Similarly, in Mazer v. Stein, the Court delineated a prerequisite for copyrightability to be that a work “must be original, that is, the author’s tangible expression of his ideas.” 347 U.S. 201, 214 (1954). Goldstein v. California, too, defines “author” as “an ‘originator,’ ‘he to whom anything owes its origin,’” 412 U.S. at 561 (quoting Sarony, 111 U.S. at 58). In all these cases, authorship centers on acts of human creativity.

The judge says that AI can create “challenges” to the copyright system, but that’s not an issue for the courts to work out. Therefore, the court says, all of Thaler’s arguments about assigning the copyright to himself are moot, as there was no copyright in the first place.

Given that the work at issue did not give rise to a valid copyright upon its creation, plaintiff’s myriad theories for how ownership of such a copyright could have passed to him need not be further addressed. Common law doctrines of property transfer cannot be implicated where no property right exists to transfer in the first instance. The work-for-hire provisions of the Copyright Act, too, presuppose that an interest exists to be claimed. See 17 U.S.C § 201(b) (“In the case of a work made for hire, the employer . . . owns all of the rights comprised in the copyright.”). Here, the image autonomously generated by plaintiff’s computer system was never eligible for copyright, so none of the doctrines invoked by plaintiff conjure up a copyright over which ownership may be claimed.

And thus, we have yet another loss on the books for Thaler and another win for the belief that AI created works are not subject to copyright (or patents).

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