Trouble in Paradise: Copyright Office Rejects AI’s ‘Written’ Work for Copyright Registration | Arent Fox Schiff


The United States Copyright Office Board of Review (the “Board”) recently ruled, in its first decision of the year, that a two-dimensional work of art titled “A Recent Entry into Paradise” ( the “Work”) could not be registered for copyright protection because it was created by artificial intelligence without any creative input or intervention from a human being.[1] AI has advanced dramatically in the creative industries, including music, web design and development, art, and social media, raising the question: how, if at all, does the “fruit of the labor of IA” be protected by US copyright law?


Steven Thaler may have sought an answer to this question when he filed an application with the US Copyright Office (the “Copyright Office”) in 2018 to register the Work for copyright protection. Thaler’s request identified a “creativity machine” as the author of the work and noted that the work “was autonomously created by a computer algorithm running on a machine”. Thaler registered as a copyright claimant, declaring his “ownership of the machine” in a statement of transfer. His request also stated that he was registering the computer-generated work as a work made for rental, with himself, “the owner of the Creativity Machine”, as the copyright claimant.

Thaler’s request was rejected by a Copyright Office registration specialist in 2019 because the work lacked the “human authorship” required to support a copyright claim. In response, Thaler asked the Copyright Office to reconsider its denial of registration, arguing that the human authorship requirement is unconstitutional and unsupported by statute or case law. The Copyright Office came to the same conclusion after a reassessment.

Thaler then filed a second request for reconsideration with the Commission. In addition to raising the same argument that refusing to extend copyright protection to machine-generated works was unconstitutional and unsupported by legal precedent, Thaler raised a policy rationale that not to do so would incentivize individuals to dishonestly claim authorship of works autonomously created by AI. .


The Board upheld the Copyright Office’s decision, concluding that “human authorship is a prerequisite for copyright protection.”[2] Operating under the precedent that “copyright law protects only the fruits of intellectual labor which are based upon the creative powers of the [human] spirit,”[3] the Board found that it was up to Thaler to present evidence that as a human being he had provided a creative contribution or intervention. Notably, Thaler advanced no such evidence or argument, and instead maintained his position that the Copyright Office’s human authorship requirement was unconstitutional and unsupported by copyright case law. The Board therefore chose not to determine what level and circumstances of human involvement in the creation of machine-generated works would be necessary for copyright protection.[4]

Citing the statutory text of the Copyright Act, a number of court opinions and the long-standing practice of the Copyright Office, the Board concluded that human authorship is unequivocally a necessary element of copyright protection. The Commission, however, admitted that it was not aware of any US court considering whether AI alone can create works eligible for copyright protection, instead pointing to patent law case law that AI cannot. cannot be the “inventor” of a patented invention.[5]

The Board also rejected Thaler’s argument that AI can create copyrighted works under the cash-for-work doctrine because cash-for-work requires either an employee relationship or an instrument binding writing, which do not apply to a machine. The cash-for-work doctrine, the Commission explained, also speaks only of the identity of the copyright claimant, not the author of the copyrighted work.

In the end, the Board refrained from departing from a long-standing precedent, stating that it was “for Congress, not the Board, to decide how best to pursue the purposes of the clause copyright”.[6]

More soon…?

If Thaler decides to challenge the Commission’s decision in federal court, the Commission’s decision could become the precursor to seminal case law on when, if at all, works created by artificial intelligence can be copyrighted. under copyright law.

[1] The opinion is available here.

[2] Identifier. at 3.

[3] Identifier. (internal quotes omitted).

[4] Identifier. at 3, n.3.

[5] Identifier. at 5.

[6] Identifier. at 4, n. 5 (internal quotes omitted).

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