A federal district court in Washington D.C. has just concluded that a piece of visual art
autonomously created by a computer algorithm is not eligible for copyright protection because
it lacked human authorship. Stephen Thaler sought to register for copyright a picture generated
by a computer program, naming the machine as the author and seeking transfer of the
copyright to him as owner of the machine. The copyright office denied the registration and
Thayer filed suit in federal district court in Washington, D.C. On cross motions for summary
judgment the court considered as the sole issue: Is a work generated entirely by an artificial
system absent human involvement eligible for copyright protection? The court said no, holding
that, “human authorship is an essential part of a valid copyright claim.”

Section 102(a) of the Copyright Act of 1976 protects, “original works of authorship…”
The court held that although “author” is nowhere defined in the statute, the “author” of the
work must be human, (relying in part on the definition of “author” in the Merriam-Webster
Dictionary and analogizing to prior case law). But the court also could have relied on the
statutory requirement that a work be “original”.
To be original, the work must “owe its origin to the author”. The statute merely requires
that, “the author contributed something more than a merely trivial variation, something
recognizably his own.” This requirement also seems to suggest human involvement but the real
question is how much is required?

Mr. Thaler’s application for copyright originally said the picture was created solely by
the machine. But what if a human and machine worked together on the project? There is no
guidance in the law to address that situation. Practically speaking, it will have to come from the
legislature not the courts. And no one has a bigger stake in such legislation than Hollywood.

While the Hollywood writers’ strike started with a focus on money, they soon realized
that the bigger threat to their livelihood will come from being replaced by AI. Copyright
protection is important to the producers of television shows and movies. And they are finding
that AI can be a useful tool in creating their works. But the Thaler case suggests that they better
be careful how they use AI if they hope to protect those works. At the very least, some human
authorship may be required. Perhaps this is why the parties reached an agreement Sunday that
included minimal mandatory human staffing. Uncertainty about copyright protection creates
more risk than the producers can stomach so expect their lobbyists to be hard at work in
Washington., D.C. The writers would be wise to send theirs, as well.

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