A work generated autonomously by a machine has no author and no copyright

2023-08-18Copyright

Thaler v. Perlmutter, No. 1:22-cv-01564-BAH (D.D.C. Aug. 18, 2023) (Howell, J.), granting summary judgment to the Register of Copyrights and the United States Copyright Office

Stephen Thaler applied to register "A Recent Entrance to Paradise," a visual work, listing his "Creativity Machine" as author, describing the work as "[c]reated autonomously by machine," and claiming the copyright for himself as a work made for hire by reason of "Ownership of the machine." The Copyright Office refused in 2019 and 2020, and its Review Board affirmed in 2022. On cross-motions for summary judgment under the Administrative Procedure Act, Judge Howell granted judgment to the Register. The opinion holds that "Human authorship is a bedrock requirement of copyright" and that "United States copyright law protects only works of human creation." It reasons from the "works of authorship" language of Section 102(a) of Title 17 of the United States Code, from the 1909 Act's limitation of copyright to a "person," from Burrow-Giles, Mazer and Goldstein, and from the cases refusing protection to works attributed to celestial beings, a garden and a macaque. The court acknowledged harder questions ahead about how much human input makes the user of a generative system an author, but this record presented none: Thaler told the Office he played no role, and his later assertions that he prompted and directed the system contradicted that record. The work-for-hire and property-transfer theories failed because no copyright ever existed to transfer, and both statutory definitions of a work made for hire presuppose a human preparer.

What it changesCopyright and patent law now point the same way on machine creation: Thaler v. Vidal held last August that an inventor must be a natural person, and this decision holds that an author must be one too. The business consequence is that the raw output of a generative system is unprotected unless a human's creative choices can be shown in it, and the Copyright Office's March 2023 registration guidance already requires applicants to disclose generated material and treats the output of a bare prompt as the machine's work. The protectable asset is therefore the system, which argues for patents on the pipeline, the training method and the serving architecture, trade secret protection for the weights and the prompts, and contracts that allocate output rights between vendor and customer. Where the company wants rights in the outputs themselves, the workflow has to put a human in the loop making documented creative decisions. The ruling is a district court decision on a record the plaintiff chose.