US Copyright: ‘works of authorship’ require human creation

Following the District Court decision (August 2023) in Thaler v Perlmutter[1], the US Copyright Review Board (the Board) has maintained its refusal (upon a second request for reconsideration) to recognise copyright in the AI-generated work title Théatre D’Opéra Spatial (the Work).

The Applicant submitted the Work, a two-dimensional image, without disclosure or disclaiming the use of artificial intelligence (AI) in its creation. As this became known to the Copyright Office, it refused to register the Work. Upon filing a second request, the Applicant argued:

• The Copyright Office ignored the essential element of human creativity required to create the Work using AI;

• The “creative input” was entering into the AI a series of prompts, adjusting the scene, selecting portions to focus on and dictating the tone of the image;

• The fair use doctrine would allow for registration of the Work as it allows for transformative uses of copyrights material;

• Regardless of whether the underlying AI-generated work is eligible for copyright registration, the entire Work should be accepted for registration.

Perhaps based on the March 2023 AI Copyright Guidance[2] issued by the Copyright Office (the Guidance) and the decision in Thaler, it may not be a huge surprise that this line of argument might be problematic for the Applicant in the US. Whilst there no register of copyright works in the United Kingdom, the arguments above maybe interesting given section 9(3) of the Copyright, Designs and Patents Act 1988. Perhaps the arguments above could be utilised with some success given:

In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.[3]

In the US, consistent with the Guidance and Thaler, a ‘work’ is one of human authorship. The Board confirmed again that “if all of a work’s ‘traditional elements of authorship’ were produced by a machine, the work lacks human authorship, and the Office will not register it.” However, and importantly, the Board did recognise that if a “a work containing AI-generated material also contains sufficient human authorship to support a claim to copyright, then the Office will register the human’s contributions.” (emphasis added)

The underlined section above is important. If there is more than a de minimis input of AI in a claimed work, the Copyright Office will register the work if:

·                     There has been identifiable human authorship in the work; and

·                     The human authorship contribution to the work has been disclosed.

The description of the limitation only needs to be brief and generic as “[description of content] generated by artificial intelligence.”

Unfortunately, the applicant for the Work refused to make a disclaimer in the ‘Limitation of Claim’ which meant the Board had to view the Work as a whole and reject it based on non-human authorship. The refusal to disclaim rests on the applicant’s view that the entire work was effectively created through his artistic ability and that the AI was a mere tool in the process.

The Board did not see it that way and said of the applicant that “his sole contribution to the [Work] was inputting the text prompt that produced it.” Again, consistent with the Guidance, “when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology – not the human user."

In the situation of a complete refusal to make the disclosure and disclaimer required in the US, the Board, understandably, maintained the refusal to register the Work.

Incidentally, the fair use argument was wholly rejected. As a legal doctrine it permits unauthorised use of copyright-protected works in certain circumstances, but it does not address the copyrightability of the work itself.

September 2023

[1] No. 22-cv-1564, 2023 WL 5333236.

[2] Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190 (16 march 2023).

[3] Section 9(3) of the Copyright, Designs and Patents Act 1988 (UK).

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