There are likely more questions than answers surrounding the concept of Artificial Intelligence. It is a new frontier. But the federal appeals court for the D.C. circuit recently answered one question that has been on the minds of a lot lawyers. The question is whether United States Copyright Act applies to works created by AI. And the answer is no.
The case arose when a computer scientist, Dr. Stephen Thaler, created a generative artificial intelligence named the "Creativity Machine." The Creativity Machine made a picture that Dr. Thaler titled "A Recent Entrance to Paradise." Dr. Thaler submitted a copyright registration application for "A Recent Entrance to Paradise" to the United States Copyright Office. On the application, Dr. Thaler listed the Creativity Machine as the work's sole author and himself as just the work's owner.
The Copyright Office denied Dr. Thaler's application and the United States District Court affirmed. The 11th Circuit Appellate Court extended Dr. Thaler's losing streak when it affirmed the District Court's decision.
At each stage of the proceedings, Dr. Thaler failed to overcome the fact that, given the AI creation, there was no "human authorship" – a requirement under the Copyright Act of 1976.
The United States Constitution's Intellectual Property Clause gives Congress authority to "promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries[.]" But under the plain terms of that provision, federal copyright protection extends only as far as Congress designates by statute.
In considering the legal issue here, the appellate court first considered the text of the Copyright Act. It provides that a copyright "vests initially in the author or authors of the work." And copyright protection only "subsists * * * in original works of authorship[.]" The court noted that "[t]he Copyright Act does not define the word 'author.' But traditional tools of statutory interpretation show that, within the meaning of the Copyright Act, 'author' refers only to human beings." The court cited numerous reasons for its holding.
First, the Act presumes the copyright holder can acquire property. Only a human can do so. The Act also limits the term of the copyright to "the life of the author, plus a designated period." A machine does not have a "life." Third, the Copyright Act has an inheritance provision. Machines, needless to say, have no surviving spouses or heirs. Fourth, copyright transfers require a signature. Machines lack signatures, as well as the legal capacity to provide an authenticating signature. Fifth, authors of unpublished works are protected regardless of the author's "nationality or domicile." Machines do not have domiciles, nor do they have a national identity. Sixth, authors have intentions. A joint work is one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." Machines lack minds and do not intend anything. Finally, every time the Copyright Act discusses machines, the context indicates that machines are tools, not authors.
The court rejected Dr. Thaler's argument that the human-authorship requirement wrongly prevents copyright law from protecting works made with artificial intelligence. As the court noted, copyright law has evolved and incorporated technologies that once were considered "novel." But, as the court noted, "that evolution in copyright protection has been at Congress's direction, not through courts giving new meaning to settled statutory terms." The court also noted that its decision did not strip copyright protection from a work that "was made by or with the assistance of artificial intelligence." If you ask Chat GPT to write a poem, you aren't the author. If you ask it for ideas to get you started, you likely are. This is the court's way of saying the sky is not falling.
The Copyright provision in the Constitution was adopted in 1789. Since that time, we've seen the development of photography, sound recordings, film and computers. AI is a link in this chain. Copyright law has weathered these storms, and I suspect, will continue to do so.
