Wade Clark Mulcahy LLP

The U.S. Copyright Office recently rejected a second request for copyright protection on a work of art created through artificial intelligence (“AI”). Steven Thaler is a self-proclaimed AI pioneer and creator of the artificial intelligence program called the “Creativity Machine.” In essence, the Machine uses a computer algorithm to generate images with little to no human interaction.

In November 2018, Thaler filed an application in the US Copyright office for a work titled “A Recent Entrance to Paradise,” and listed the Machine as the artist itself. The work was part of a series generated by the Machine that was programmed to create “hallucinatory images about the afterlife.”

In August 2019, the Copyright office rejected Thaler’s application because the Machine-generated work “lacked the human authorship necessary to sustain a claim in copyright.” Thereafter, Thaler asked the office to reconsider its decision and argued that the “human authorship” standard was unconstitutional.

Upon its second review, the Office affirmed its initial denial. In a letter to Thaler’s attorney, the Office emphasized that the Copyright Act “only protects the fruits of intellectual labor” that are “founded in the creative powers of the mind.” Under that standard, a work that was created without contribution from a human author was ineligible for registration.

The issues raised by Thaler’s application, and the Office’s responses to those questions, are both legal and existential in nature. At what point is an operation performed by a machine – that is, a machine that a <em>human mind </em>envisioned and created – no longer a “fruit of intellectual labor”? The Copyright Act is notoriously complex and unpredictable, and its application in the up-and-coming field of AI will be interesting to follow.

Thank you to Alexandra Deplas for her contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.