Dueling Briefs Filed Over Human Authorship Requirement for US Copyright Registration

The threshold issue of human authorship as a prerequisite for obtaining copyright registration at the US Copyright Office is currently being litigated in federal court in the District of Columbia. In August 2023, the US District Court for the District of Columbia upheld the Copyright Office’s refusal to approve Dr. Stephen Thaler’s application to register the AI-generated visual work A Recent Entrance to Paradise, shown below, for lack of human authorship.

A Recent Entrance to Paradise

In January 2024, Dr. Thaler appealed the decision to the DC Circuit Court of Appeals, arguing that the District Court erred when it found that content generated by AI was not eligible for US copyright protection upon its creation. Specifically, Dr. Thaler’s opening appeal brief asks the DC Court of Appeals to issue an order compelling the Copyright Office to set aside its refusal to register A Recent Entrance to Paradise and, in effect, eliminate the human authorship requirement.

Both parties have submitted their respective appeal briefs. The Copyright Office’s reply brief was filed on March 6, 2024 and Dr. Thaler’s brief in response was most recently filed on April 10, 2024.

Textual Support of the Human Authorship Requirement

In its reply brief, the Copyright Office maintains that both the ordinary meaning of the text and the structure of the Copyright Act of 1976 (Copyright Act) itself demonstrate Congress’s intent to limit authorship of protected works to humans, which would exclude machines. For example, the Office argues that the Copyright Act itself “presumes” the existence of the human authorship requirement because “[t]he Copyright Act[’s] provisions governing a copyright’s lifecycle—including its creation, conveyance, duration, and renewal—show that a human must be involved in authoring the work.”

The brief cites to a myriad of language from the Copyright Act that the Office argues would be rendered “empty” without a human-authorship requirement, including terms such as “widow or widower,” “surviving children,” “grandchildren,” and “[a] person’s children” as well as “life” and “death.” The brief argues that “[a]ccepting a machine as the ‘author’ of a copyrighted work would twist the statute into knots” and “the [Copyright Act] is replete with provisions that make no sense unless authors are human.”

The Office describes as circular and meritless Dr. Thaler’s efforts to redefine the statutory authorship requirement by, in part, quoting a 2023 dictionary that says, “under a certain definition,” an “author” includes a “person or thing.” On this point, the Office’s brief argues “[i]t is entirely unclear what bearing a 2023 dictionary would have on the interpretation of the Copyright Act of 1976, much less how the dictionary’s definition would account for all the statutory indications that authors must be human for purposes of the Copyright Act.”

Further, the Office’s brief maintains that even to the extent a work made for hire may grant certain rights to corporations, Congress “enacted provisions requiring that the person who created the work have capacity to enter employment arrangements and binding agreements.”

The Office argues that (1) “[e]mployees are human,” (2) Dr. Thaler’s attempts to categorize the generative AI machine as his employee is “unnatural,” and (3) Dr. Thaler’s work-for-hire argument must fail given that he “admits that his machine is not (and cannot be) his employee, and that it did not (and cannot) execute a written contract for commission” and “concedes [that] a machine lacks legal rights; has no family, birth, or death; and cannot execute contracts.”

With regard to the Copyright Act’s allowance of anonymous and pseudonymous works under Section 302(c), the reply brief argues that this “establishes only the unremarkable point that a work need not have an identified human author,” and not that human authorship is not required.

Historical Support of the Human Authorship Requirement

In addition to its textual arguments, the Copyright Office argues that the human authorship requirement aligns with precedent dating back to the 19th century, with numerous watershed case holdings that “hinged on human authorship,” including the US Supreme Court’s decision in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in which “human input in (and creative control over) [works captured by photograph] drove the Court’s conclusion that copyright could attach.”

The brief cites various appellate decisions from the Seventh, Ninth, and Tenth Circuits that have “consistently rejected efforts to obtain copyright in works allegedly authored by nonhumans.” These include Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018), the famous monkey selfie photograph case wherein a photograph captured by a monkey could not be protected by copyright for lack of human authorship.

The Copyright Office argues that Congress has been consistent in its position requiring human authorship, noting that Congress has “not amended the Copyright Act’s authorship requirement despite amending other aspects of the statute.” The Office further maintains that Congress granted the Office “broad authority to administer the copyright registration system” and that it too has been consistent in terms of its views on human authorship, citing back to the second edition of the Compendium published in 1984 in which the Office instructed that “the term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being.”

Copyright Office Argues That Policy Arguments Are ‘Inapposite’

The Copyright Office also rejected Dr. Thaler’s policy-based arguments that the creation and distribution of AI-generated works should be encouraged, characterizing this stance as “inapposite” and pointing to Federal Circuit case law that has rejected similar arguments in the patent context.

Even still, according to the Office, “[i]t is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives,” and Dr. Thaler’s policy views “supply no basis to set aside” the “settled meaning” of the authorship requirement.

Copyright Office’s Application of the Human Authorship Requirement

In the context of AI‑generated works, the Office considers whether “AI contributions are the result of ‘mechanical reproduction’ or instead of an author’s ‘own original mental conception, to which the author gave visible form.’” On this point, the Office claims that Dr. Thaler has been inconsistent with regard to his level of control versus the autonomy of the machine in creating A Recent Entrance to Paradise, citing disclaimers provided in his original application that stated “the present submission lacks traditional human authorship” and instead “was autonomously generated by AI.”

In light of these disclaimers, any later-alleged human contributions were unpersuasive to the Copyright Office. The Office also argues that Dr. Thaler failed to present any evidence of human contributions at the District Court.

Dr. Thaler’s Reply

In response to the Copyright Office’s brief, Dr. Thaler’s reply largely reemphasizes what he characterizes as “fundamental truths” ignored by the Office—“namely, [that] the Work exists, the Work is original, and it would be flatly inconsistent with the purpose of the Copyright Act [] to deny the Work protection under the statute.” At its core, Dr. Thaler’s brief challenges what he describes as the Office’s “strain[ed]” efforts to tie the language and precedent of the Copyright Act to a human-author requirement.

Dr. Thaler contends this approach is “self-evidently wrong, as the Act itself (and decades of case law interpreting it) provides for copyright protection of works whose authors are not human.” Dr. Thaler further argues, “[o]nce it is accepted that original works authored by [AI systems] are copyrightable,” and given that the machine itself cannot possess intellectual property rights, “the only logical result is that Dr. Thaler—the machine’s creator and user—holds the copyright.”

With regard to the underlying text, Dr. Thaler argues that the Office’s selective approach to citing provisions it argued would be rendered “empty” without a human-authorship requirement is in conflict with the Copyright Act’s statutory scheme, which he argues is meant to “enforce[] a clear practical design to incorporate and facilitate copyright for non‑human authored works.” Dr. Thaler cites to other language that he contends equally supports his position that the Copyright Act “accommodates non‑human authors,” including Section 302(a) and (c), which he claims “divorces” the duration of work-for-hire copyrights from any human life.

Accordingly, Dr. Thaler contends that the Office has failed to explain why the Copyright Act protects works made by “legal fictions” such as corporate- or government-authored works that do not explicitly require human contribution or human authorship, while withholding those same protections for works made by an AI system.

With respect to categorizing ownership, Dr. Thaler argues that the Office mischaracterizes the underlying record to the extent it claims Dr. Thaler waived any right to claim himself as the author either by virtue of owning and using the program or by virtue of the work-for-hire doctrine. Dr. Thaler maintains that traditional property law places him as the “only logical holder of the copyright . . . by virtue of his ownership and use of the machine [such] that the copyright flows to him.”

Dr. Thaler also challenges whether the Office was correct to suggest that Dr. Thaler waived any right to claim that he is the functional author of the work. He contends that his original complaint alleged that the AI system “functionally behaves as an employee or independent contractor in creating AI-Generated Works.” Moreover, he maintains that his opening brief adequately explained “how [the work-for-hire] factors, on balance[,] tip in favor of the Creativity Machine qualifying as an employee in the work-made-for-hire context.”

Dr. Thaler compares his situation to that of the photographer in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), in which the Supreme Court held that the photographer was properly considered the author for copyright purposes. Similar to a photographer, Dr. Thaler maintains he is similarly qualified as the author to the extent the work “owes its origin” to Dr. Thaler.

In response to the Copyright Office’s reference to its own Compendium requiring a work be refused registration for lack of human authorship, Dr. Thaler argues that, “as the Supreme Court has recognized, ‘the Compendium is a non‑binding administrative manual’ whose ‘guidance’ is ‘unpersuasive’ when existing precedent already address the issue.”

For Now, Disclosure of AI Authorship Is Required

Given the strong view of the Copyright Office on this issue, unless Dr. Thaler or others are successful in changing the human-authorship requirement for US copyright registration, applicants for copyright registration of works created in part with AI systems must disclose the use of AI to the Copyright Office and explain the nature of human authorship.

This type of disclosure should also be provided with regard to prior registrations obtained with the use of AI to avoid arguments in the future that registrations issued for works created in part with AI tools are invalid and unenforceable.