Copyright Office refuses to register an image a machine made on its own, because an author must be human

2022-02-14Copyright

United States Copyright Office Review Board, decision affirming refusal to register "A Recent Entrance to Paradise" (Steven Thaler, claimant; "Creativity Machine," listed author), letter to Ryan Abbott, Esq. (Feb. 14, 2022), signed by Shira Perlmutter, Register of Copyrights, Suzanne Wilson, General Counsel and Associate Register of Copyrights, and Kimberley Isbell, Deputy Director of Policy and International Affairs

The Copyright Office Review Board affirmed the refusal to register "A Recent Entrance to Paradise," an artwork that Stephen Thaler says was created autonomously by a machine he calls the "Creativity Machine." The application, filed November 3, 2018, listed the machine as author and Thaler as claimant by "ownership of the machine," and asked the Office to register the work as a work made for hire for the machine's owner. The Registration Program refused on August 12, 2019 for lack of human authorship, refused a first request for reconsideration on March 30, 2020, and the Board has now decided the second request, filed May 27, 2020. The Board held that "human authorship is a prerequisite to copyright protection in the United States," reading "author" in the Copyright Act in light of Burrow-Giles Lithographic Co. v. Sarony, which describes an author as "he to whom anything owes its origin," the Ninth Circuit's decisions in Naruto v. Slater and Urantia Foundation v. Maaherra, and section 313.2 of the Compendium of U.S. Copyright Office Practices, under which a work must be "created by a human being." Thaler claimed no human contribution to the work. The Board rejected the work-made-for-hire theory because the machine cannot enter a binding contract and because that doctrine governs ownership, not whether a work has an author at all.

What it changesFor a company shipping the outputs of a generative model, an output carries no copyright when no human directed its expression, so a competitor can copy the generated image, text or code without facing a copyright claim. Protection for that business has to be sought elsewhere: patent claims on the system that produces the outputs (the architecture, the training procedure, the sampling and filtering pipeline), trade secret protection for the weights and the training data, and contract terms on access. The second lesson is about records. Where a human does shape the output, registration will turn on documenting that human's choices, so the product team should log the prompts, selections and edits a person makes, in the same way an invention disclosure records who conceived which claim element. The decision is an administrative refusal that Thaler can take to district court, but it states the Office's position for every registration filed today.