IP Law Daily, TOP STORY—D.D.C.: Copyright Office sued over rejection of AI-authored artwork, (Jun 6, 2022)

By Matthew Hersh, J.D.

A federal court is asked to overturn years of agency practice and allow computers to be listed as “authors” of works.

The Copyright Office is still relying on “judgments from the Gilded Age” in refusing to allow registration of artworks that were authored by artificial intelligence, a new lawsuit contends. The lawsuit, brought by inventor and AI pioneer Stephen Thaler, in the federal court in Washington DC, was filed just days before a high profile federal appellate court argument involving the same inventor’s ability to obtain a patent in the name of his learning machine algorithm (Thaler v. Perlmutter, June 2, 2022).

The work at the center of the lawsuit, which can be seen on this page maintained by the Smithsonian Magazine, was created, according to a description the inventor gave to that magazine, as part of a “simulated near-death experience” in which an algorithm repurposes pictures to create images seen by a synthetic dying brain. The name of the work—which we might assume, but cannot be certain, was given by a human—is “A Recent Entrance to Paradise.”

The broader background for the case is a debate that has emerged, both in the United States and abroad, over whether the creations of artificial intelligence can be subject to intellectual property protection. The inventor Thaler, along with prominent advocates around the world, have been promoting the idea in courts and administrative bodies for several years. Much of the litigation to date has involved patents. So far, Thaler has been unsuccessful in his attempts to register a patent naming the artificial intelligence process “DABUS” (Device for the Autonomous Bootstrapping of Unified Sentience) as the inventor in the U.S., the U.K., the E.U., and Australia. In contrast, South Africa in 2021 issued a patent designating Thaler’s DAUBUS AI as an inventor. Last year, a federal court in Virginia, following the recommendation of the Patent and Trademark Office, rejected Thaler’s application to patent an AI-created work. (As it happens, the Federal Circuit earlier today heard Thaler’s appeal of that Virginia decision. Those interested can listen to a recording of the arguments at this link, and other early coverage of today’s argument may also be found here).

As to the artwork “A Recent Entrance to Paradise,” while the work may have been well received in the field of computational science, its entrance into the world of copyright law has been somewhat less welcoming. The Copyright Office refused to accept registration of the work in the inventor’s name on the ground that the law recognized only works with a human authorship, not those “authored” by machines. Asked to reconsider on two different occasions, the Office stood by its opinion each time. In its latest opinion letter, issued on February 14 of this year, the Office’s Copyright Review Board emphasized that it was not making any determination as to whether and under what circumstances “human involvement in the creation of machine-generated works” would qualify the work for protection. That is, the court noted, to the extent that a computer was “merely being an assisting instrument” to a human as opposed to “actually conceiving and executing” the work, that might present a different question. But since the inventor had expressly disclaimed “any creative contribution from a human actor,” the Board held, the law did not permit him—or anybody—to claim the work in a copyright registration.

In his federal lawsuit, which, like the patent case, is sure to be reviewed eventually by a court of appeals, the inventor tenders several reasons why the Office should have accepted registration. For one, the inventor argues, the law affords protection to “original works of authorship” without ever expressly limiting that “authorship” to natural persons. (Indeed, the inventor notes, corporations and other business entities can already be “authors” under the law, under the work for hire doctrine.) Moreover, the inventor asserts, principles of common law ownership support his claim. “If a person owns a fruit tree that bears fruit,” the complaint asserts, “the tree’s owner owns the fruit.” By a similar argument, the complaint argues, since the inventor owns the machine that generated the work, he should be entitled to claim the “fruits” of that machine’s work, namely the piece of art. Third, the inventor argues, a more flexible view by the Copyright Office will protect it from being the victim of fraud. The inventor himself, he notes, could easily have simply passed himself off as the author of the artwork in question—and surely others have registered similar works, he contends, “without exhibiting Dr. Thaler’s level of transparency.”

The Case is No. 1:22-cv-01564.

Attorneys: Geoffrey A. Neri (Brown, Neri, Smith & Khan LLP) for Stephen Thaler.

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