Can Humans Copyright AI-Generated Art? Thaler v. Perlmutter
Humans aren’t the only entities capable of creating art. AI art generators, such as DALLE-2 and Stable Diffusion, have become immensely popular online as users generate images limited only by their imagination and a text prompt.[1]
How do these artificial intelligences create art? They begin by examining a huge collection of labeled images, known as a dataset, which allows them to learn what specific objects are – for example, a large dataset of images can be used to learn what a text prompt means by the word “cat.”[2] They then take advantage of a complicated process called diffusion, which involves removing pixelated noise from images, to learn how to generate new images for themselves.[3] After finding enough similarities between the labels it has already learned through the dataset and the images it has generated through diffusion, the AI is capable of generating original images similar to the ones it has already seen.[4] This is where text prompts enter the equation – the AI recognizes the input text from labels it has already seen, matches the label up with images it knows how to generate, and creates an image based on that label.[5]
Thaler’s Copyright Attempt
In November 2018, Stephen Thaler filed an application to register a work of art called “A Recent Entrance to Paradise.”[6] This piece of art was generated by an AI that Thaler had created called the “Creativity Machine,” and Thaler listed the AI as the author of the work on the application.[7] Thaler laid claim to the copyright on the grounds that “A Recent Entrance to Paradise” was a work-for-hire made for him, as he was the owner of the AI.[8]
However, the U.S. Copyright Office denied the claim.[9] Thaler’s application violated a key requirement of copyright: human authorship.[10] The Copyright Act protects “original works of authorship,” and courts have long interpreted “authorship” as having been created by a human.[11] The Copyright Office specifically says that “the Office will not register works produced by a machine” and that the question they consider is “whether the ’work’ is basically one of human authorship, with the computer. . . merely being an assisting instrument, or whether the traditional elements of authorship in the work. . . were actually conceived and executed not by man but by a machine.”[12]
Thaler requested the Copyright Office to reconsider, claiming that “the human authorship requirement [was] unconstitutional.”[13] In response, the Copyright Office denied his request a second time because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work,” and refused to “abandon its longstanding interpretation of the Copyright Act.”[14] Thaler then sent in a second request to reconsider, arguing that allowing AI-generated works to be copyrighted would “further the underlying goals of copyright law, including the constitutional rationale for copyright protection.”[15] However, the Copyright Office again denied his arguments.[16] It reasoned that courts had “uniformly limited copyright protection to creations of human authors,” and that federal agencies, including itself, had followed that policy for as long as it had been in place.[17] To gain copyright protection, Thaler would have to either provide evidence that “A Recent Entrance to Paradise” was actually the product of human authorship or deliver an argument strong enough to make the Copyright Office change the interpretation of “authorship,” neither of which he did.[18]
Aftermath and Implications
After being denied for the third and final time, Thaler decided to sue the Copyright Office for the registration.[19] His arguments are that the plain language of the Copyright Act allows protection of AI-generated works because of its purposeful vagueness, that no case law specifically prohibits AI-generated works from being protected by copyright, that Thaler is entitled to the work under various theories including first possession and work for hire, and that AI authorship in general falls under the purpose of the Copyright Act.[20] The case is still in an early stage of litigation, and the Copyright Office’s answer had not been released by the time of writing.
It remains to be seen whether the court will remain consistent with its long interpretive history of “authorship,” or whether it will radically diverge and rule that AI-generated works can be protected. However, the result of another of Thaler’s suits suggests that he may fail. Thaler is also suing the U.S. Patent and Trademark Office under similar circumstances, claiming that another one of his AIs should be granted patent rights for an invention it created.[21] Courts have interpreted the term “inventor” in the Patent Act similarly to the word “authorship” in the Copyright Act, holding that the term was meant to apply only to human beings.[22] The USPTO followed the Federal Circuit’s interpretation and denied Thaler’s patent application on those grounds, so Thaler sued.[23] The Eastern District of Virginia ruled against Thaler in that case, holding that the USPTO’s interpretation of the Patent Act was entitled to Skidmore deference and that Thaler’s arguments were not strong enough to overcome the evidence that Congress’s intent was to limit the definition of “inventor” to natural persons.[24] The Federal Circuit affirmed the District Court’s decision.[25] Although Thaler is petitioning the Federal Circuit for a rehearing en banc,[26] the results of both previous stages of appeal could signal a similar fate for his case against the Copyright Office.
What could it mean if Thaler’s lawsuits succeed or fail? Success would go against a long-standing interpretation of the term “authorship” in the Copyright Act, opening the door for other non-human-created works to gain copyright protections. Other AI-generated works would obviously benefit, but animal-created works could be an unexpected benefactor as well, as they are prohibited based on the same interpretation of “authorship.”[27] Meanwhile, failure would simply put another nail in the precedential coffin of the courts’ interpretation.
Regardless of the outcome, Thaler’s lawsuit holds precedential value, and is worth observing as it continues toward a conclusion.
Footnotes
