This is an informal case summary prepared for the purposes of facilitating exchange during the 2023 WIPO IP Judges Forum.
Session 5: Generative Artificial Intelligence, the Metaverse and Intellectual Property Infringement
United States District Court for the District of Columbia [2023]: Thaler v. Perlmutter, No. 22-CV-384-1564-BAH
Date of judgment: August 18, 2023
Issuing authority: U.S. District Court for the District of Columbia
Level of the issuing authority: First Instance (Trial Court)
Type of procedure: Judicial (Administrative)
Subject matter: Copyright and Related Rights (Neighboring Rights)
Plaintiff: Stephen Thaler
Defendant: U.S. Copyright Office (Shira Perlmutter, Register of Copyrights and Director of the Copyright Office, is named defendant)
Keywords: Artificial Intelligence, Copyright, Human authorship, Intellectual property
Basic facts: Thaler alleged that he develops and runs AI systems that generate visual art. Thaler sought to register one such work of art with the U.S. Copyright Office.
The Copyright Office denied Thaler’s application on the basis that the work “lack[ed] the human authorship necessary to support a copyright claim,” noting that copyright law only extends to works created by human beings.
Held: The U.S. District Court for the District of Columbia held that a work generated entirely by an artificial system without human involvement is not eligible for copyright.
Relevant holdings in relation to generative artificial intelligence, the Metaverse and intellectual property infringement: The U.S. District Court for the District of Columbia held that because United States copyright law protects only works of human creation, the Register of Copyrights did not err in denying the copyright registration application presented by Thaler.
The District Court found that although copyright law has proven malleable enough to adapt to works involving new technologies, human creativity nonetheless remains the essential condition at the core of copyrightability, even as that human creativity is channeled through new tools or into new media. According to the District Court, copyright has never stretched so far as to protect works generated by new forms of technology operating absent any guiding human hand, as Thaler urges.
Under § 102(a) of the Copyright Act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Section 101 of the Copyright Act specifies that the “fixing” of the work in a tangible medium must be done “by or under the authority of the author.”
Although the Copyright Act does not define the word “author”, the District Court held that by its plain text, the Act requires a copyrightable work to have an originator with the capacity for intellectual, creative, or artistic labor. The District Court further held that to claim copyright protection, that originator must be human, as centuries of settled understanding support the Copyright Act’s “authorship” requirement as presumptively being human.
Judicial review of a final agency action is limited to the administrative record. Attempts by Thaler to transform the issue presented by asserting new facts that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by [him],” and that “the AI only operates at [his] direction,” thereby implying that he played a controlling role in generating the work, directly contradict the administrative record.
Thus, on the record designed by Thaler from the outset of his application for copyright registration, this case presents only the question of whether a work generated autonomously by a computer system is eligible for copyright. The Copyright Office acted properly in denying copyright registration for a work created absent any human involvement.
Relevant legislation:
Copyright Act of 1976, 17 U.S.C. § 102 (“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…”).