Thaler loses quest to copyright AI-generated artwork
Inventor of DABUS loses attempt to name his AI ‘Creativity Machine’ as author of artwork | Thaler also requested that copyright should transfer to him “as a work-for-hire” | Judge upholds Copyright Office’s previous denials.
Physicist Stephen Thaler, now well known for his DABUS artificial intelligence (AI) machine, has received yet another blow in his mission to seek IP protection for his inventions.
Just a few months ago, Thaler lost his long-running patent battle in the US to name DABUS as an inventor after the US Supreme Court (SCOTUS) denied his appeal for a writ of certiorari.
In this separate case—concluded last Friday, August 18, in Washington, DC—Thaler attempted to copyright an AI-generated two-dimensional visual artwork which he claims was authored autonomously by his patented ‘ Creativity Machine’.
The artwork, titled A Recent Entrance to Paradise, is a Romantic-styled image depicting a sun-dappled empty railway line entering a short tunnel, bordered by high walls and surrounded by purple and green foliage.
In his application to the US Copyright Office, Thaler listed the computer system as the author, but requested that the copyright should describe him “as a work-for-hire to the owner of the Creativity Machine”.
The office, represented by its director Shira Perlmutter, initially denied Thaler’s application in August 2019 on the grounds that the work, created in 2012, lacked human authorship.
Thaler challenged that denial twice, claiming in his second challenge that denial to register the work was “arbitrary, capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial evidence, and in excess of defendants’ statutory authority, in violation of the Administrative Procedure Act (APA)”.
Human authorship
Both parties moved for summary judgment to consider the question asked by Thaler: “Can someone register a copyright in a creative work made by an artificial intelligence?”
But District Judge Beryl Howell found that the Copyright Office was correct in its earlier finding that human authorship is an essential part of a valid copyright claim.
Judge Howell said that Thaler “attempts to complicate the issues presented by devoting a substantial portion of his briefing to the viability of various legal theories under which a copyright in the computer’s work would transfer to him, as the computer’s owner; for example, by operation of common law property principles or the work-for-hire doctrine.
“These arguments concern to whom a valid copyright should have been registered, and in so doing put the cart before the horse.”
She added: “Human authorship is a bedrock requirement of copyright.”
'New frontiers'
The complaint cited several previous cases, including Naruto v Slater (2018) in which it was found that a monkey could not own the copyright in a photographic selfie it had taken.
“Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their toolbox to be used in the generation of new visual and other artistic works,” wrote Judge Howell, referencing the recent flurry of copyright cases involving generative AI and calls for clarity in the law.
“The increased attenuation of human creativity from the actual generation of the final work will prompt challenging questions regarding how much human input is necessary to qualify the user of an AI system as an ‘author’ of a generated work…”, she continued.
“This case, however, is not nearly so complex”, added Howell, since Thaler said himself that he did not author the work.
Thaler is represented by Ryan Abbott (who has been counsel for Thaler in his DABUS cases), and Geoffrey Neri at Brown Neri Smith & Khan (BNSK).
The judgment was filed at the US District Court for the District of Columbia.
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