US Copyright Board: Artificial Intelligence Cannot Be Copyright Holder

In what seems like an obvious conclusion, the U.S. Copyright Office Review Board declared that copyright protection only extends works by human authors. Yes, you read that right - there are people out there agitating to extend intellectual property rights to be held by artificial intelligence. This is a dangerous agenda on a macro scale for humanity, and the Copyright Review Board should be applauded.

The Board was responding to a Second Request for Reconsideration from an applicant named Steven Thaler, who attempted to register a two dimensional image (entitled “A Recent Entrance to Paradise”) while identifying the author of the work as “Century Machine”. Thaler listed himself as the copyright claimant, and identified himself as “the owner of the machine” in the transfer statement.

It is difficult to believe that people are using legal resources to attempt to extend legal personhood to machines in the realm of intellectual property law. There have been other mercifully unsuccessful attempts in the patent area.¹

This is also reminiscent of the “Monkey Selfie” litigation brought by People for The Ethical Treatment of Animals against photographer David Slater. In that case PETA attempted to argue that a macaque who picked up one of Slater’s cameras and accidentally snapped a selfie (which Slater later published) owned the copyright to the photograph. The matter was settled between the parties, but not before the U.S. Court of Appeals for the Ninth Circuit ruled that US Copyright Law does not recognize animals as authors of protectable work.

Back to the Thaler matter: in its submission to the Board, Thaler’s counsel apparently argued “it was unconstitutional” that US Copyright Office requires an the author of a protectable work to be human.

In the Compendium, the Office plainly states that:

The Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human author” because, under the statute, “a work must be created by a human being”.

U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2021)

The Compendium is quite enlightening. The U.S. Copyright Office will not register works produced by nature, animals, or plants. In addition, the Compendium clearly states that “the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Id.

Thaler’s application indicated that the AI was completely autonomous in its creation of A Recent Entrance to Paradise. Thaler claimed no authorship himself.

Based on the Compendium alone, the application could have been rejected. The Board did continue on to cite the U.S. Supreme Court and federal appellate courts as repeatedly requiring human authorship for Copyright protection.

You can read the Board’s ruling in its entirety here.

Food for thought: At what point will Big Tech attempt to influence legislation on this point? Will there be a lobbying effort to have the Copyright Act amended to expand the definition of “author”. As we have seen with the US Congress, anything is possible, particularly when there are truckloads of lobbyist cash in the mix. We shall see.

1. Thaler v. Hirshfeld, No. 1:20-cv-903, 2021 U.S. Dist. LEXIS 167393, at *16–18 (E.D. Va. Sep. 2, 2021) (concluding that under the Patent Act, “an ‘inventor’ must be a natural person” and upholding refusal of a patent application).