Is Machine-Made Art Copyrightable?

by Audrey A. Millemann
The IP Law Blog

The United States Copyright Office has refused to register a copyright for a work of art created by a machine.

The work of art is a two-dimensional picture that is mostly dark and sort of looks like a painting. It is a view looking towards a series of two archways over railroad tracks, with walls along the sides covered in very dark green, purple, blue, and pink foliage, with a tiny bit of blue and cloudy sky above. The title is “A Recent Entrance to Paradise.” The work was created by a machine called “Creativity Machine” and was submitted for copyright registration in 2018 by Steven Thaler.

In his copyright application, Mr. Thaler stated that he was the owner of the Creativity Machine and that the machine had autonomously created the work of art using an algorithm.

In 2019, the Copyright Office refused the application on the grounds that it lacked “human authorship.” Mr. Thaler requested reconsideration of the decision, arguing that the requirement of human authorship was unconstitutional. The Copyright Office again refused registration, finding that there was “no evidence of sufficient creative input or intervention by a human author.” The Office stated that it would not alter its and the courts’ precedent that a copyright can only be granted for a work created by a human author.

Mr. Thaler filed a second request for reconsideration. He reiterated that the human author requirement was unconstitutional and argued that public policy supported allowing machine-generated works of art to be registered.

On February 14, 2022, the Copyright Review Board issued a decision affirming the Office’s refusal of registration. The Board held that “copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the human mind’,” citing the Compendium of U.S. Copyright Office Practices, §602.4(c) (3d ed. 2021). The Board explained that, in order to be registerable, a work must be created by a human.  Thus, Mr. Thaler either had to show that the work of art was created by a human or had creative input from a human, or he had to convince the Board to change “a century of copyright jurisprudence.” The Board stated that Mr. Thaler had done neither.

First, Mr. Thaler had no input into the work of art. Mr. Thaler maintained that the work of art was created solely by the Creativity Machine and that he had no involvement. Therefore, the Board did not need to decide what level of human involvement in creating a work of art is required for the work to be registerable.

Second, the Board held that the requirement of human authorship was a prerequisite to copyright registration and was not unconstitutional. The Board cited Supreme Court cases that referred to authors as humans.  The Board also cited Ninth Circuit Court of Appeal cases holding that works of art created by “non-human spiritual beings,“ monkeys, and jellyfish were not copyrightable, and a Seventh Circuit Court of Appeal case holding that a “living garden” was not copyrightable. The Board noted that the holding of a district court in the Eastern District of Virginia that an artificial intelligence system could not be an inventor on a patent application under patent law supported the Board’s conclusion, given that patent and copyright law have similar requirements.

In addition, the Board relied on a PTO study of issues related to artificial intelligence. The PTO requested public comment on the question of “whether a work produced by an AI algorithm or process, without the involvement of a natural person …. qualifies as a work of authorship” under the copyright laws. The majority of the responders believed that the existing laws do not allow a non-human to be an author and that the law should not be changed.

Scott Hervey and Josh Escovedo talk about this decision on this episode of The Briefing by the IP Law Blog, here.