This post comes from Sandra Aistars, Clinical Professor and Director of the Arts & Entertainment Advocacy Clinic at George Mason University, Antonin Scalia Law School, and Senior Fellow for Copyright Research and Policy & Senior Scholar at C-IP2.
On March 17, 2022, I had the pleasure to discuss Artificial Intelligence and Authorship with Dr. Ryan Abbott, the lawyer representing Dr. Stephen Thaler, inventor of the “Creativity Machine.” The Creativity Machine is the AI that generated the artwork A Recent Entrance to Paradise, which was denied copyright registration by the United States Copyright Office. Dr. Abbott, Dr. Thaler, and his AI have exhausted all mandatory administrative appeals to the Office and announced that they would soon sue the Office in order to obtain judicial review of the denial. You can listen to the conversation here.
Background:
Dr. Thaler filed an application for copyright registration of A Recent Entrance to Paradise (the Work) on November 3, 2018. For copyright purposes, the Work is categorized as a work of visual art, autonomously generated by the AI without any human direction or intervention. However, it stems from a larger project involving Dr. Thaler’s experiments to design neural networks simulating the creative activities of the human brain. A Recent Entrance to Paradise is one in a series of images generated and described in text by the Creativity Machine as part of a simulated near-death experience Dr. Thaler undertook in his overall research into and invention of artificial neural networks. Thaler’s work also raises parallel issues of patent law and policy which were beyond the scope of our discussion.
The registration application identified the author of the Work as the “Creativity Machine,” with Thaler listed as the claimant as a result of a transfer resulting from “ownership of the machine.” In his application, Thaler explained to the Office that the Work “was autonomously created by a computer algorithm running on a machine,” and he sought to “register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.”[i]
The Copyright Office Registration Specialist reviewing the application refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.”[ii]
Thaler requested that the Office reconsider its initial refusal to register the Work, arguing that “the human authorship requirement is unconstitutional and unsupported by either statute or case law.”[iii]
The Office re-evaluated the claims and held its ground, concluding that the Work “lacked the required human authorship necessary to sustain a claim in copyright” because Thaler had “provided no evidence on sufficient creative input or intervention by a human author in the Work.”[iv]
37 CFR 202.5 establishes the Reconsideration Procedure for Refusals to Register by the Copyright Office. Pursuant to this procedure Thaler appealed the refusal to the Copyright Office Review Board comprised of The Register of Copyrights, The General Counsel of the Copyright Office and a third individual sitting by designation. The relevant CFR section requires that the applicant “include the reasons the applicant believes registration was improperly refused, including any legal arguments in support of those reasons and any supplementary information, and must address the reasons stated by the Registration Program for refusing registration upon first reconsideration. The Board will base its decision on the applicant’s written submissions.”
According to the Copyright Office, Thaler renewed arguments from his first two unsuccessful attempts before the Office that failure to register AI created works is unconstitutional, largely continued to advance policy arguments that registering copyrights in AI generated works would further the underlying goals of copyright law, including the constitutional rationale for protection, and failed to address the Office’s request to cite to case law supporting his assertions that the Office should depart from its reliance on existing jurisprudence requiring human authorship.
The Office largely dismissed Thaler’s second argument, that the work should be registered as a work made for hire as dependent on its resolution of the first—since the Creativity Machine was not a human being, it could not enter into a “work made for hire” agreement with Thaler. Here, the Office rejected the argument that, because corporations could be considered persons under the law, other non-humans such as AIs should likewise enjoy rights that humans do. The Office noted that corporations are composed of collections of human beings. The Office also explained that “work made for hire” doctrine speaks only to who the owner of a given work is.
Of course, both Dr. Abbott and the Copyright Office were bound in this administrative exercise by their respective roles: the Copyright Office must take the law as it finds it—although Dr. Abbott criticized the Office for applying caselaw from “the Gilded Age” as the Office noted in its rejection “[I]t is generally for Congress,” not the Board, “to decide how best to pursue the Copyright Clause’s objectives.” Eldred v. Ashcroft, 537 U.S. 186, 212 (2003). The Board must apply the statute enacted by Congress; it cannot second-guess whether a different statutory scheme would better promote the progress of science and useful arts.”[v] Likewise, Dr. Abbott, acting on behalf of Dr. Thaler was required to exhaust all administrative avenues of appeal before pursuing judicial review of the correctness of the Office’s interpretation of constitutional and statutory directives, and case law.
Our lively discussion begins with level setting to ensure that the listeners understand the goals of Dr. Thaler’s project, goals which encompass scientific innovation, artistic creation, and apparently—legal and policy clarification of the IP space.
Dr. Abbott and I additionally investigate the constitutional rationales for copyright and how registering or not registering a copyright to an AI-created work is or is not in line with those goals. In particular, we debated utilitarian/incentive-based justifications, property rights theories, and how the rights of artists whose works might be used to train an AI might (or might not) be accounted for in different scenarios.
Turning to Dr. Thaler’s second argument, that the work should be registered to him as a work made for hire, we discussed the difficulties of maintaining the argument separately from the copyrightability question. It seems to me that the Copyright Office is correct that the argument must rise or fall with the resolution of the baseline question of whether a copyrightable work can be authored by an AI to begin with. The other challenging question that Dr. Abbott will face is how to overcome the statutory “work made for hire” doctrine requirements in the context of an AI-created work without corrupting what is intended to be a very narrow exception to the normal operation of copyright law and authorship. This is already a controversial area, and one thought by many to be unfavorable to individual authors because it deems a corporation to be the author of the work, sometimes in circumstances where the human author is not in a bargaining position to adequately understand the copyright implications or to bargain for them differently. In the case of an AI, the ability to bargain for rights or later challenge the rights granted, particularly if they are granted on the basis of property ownership, seems to be dubious.
In closing the discussion, Dr. Abbott confirmed that his client intends to seek judicial review of the refusal to register.
[i] Opinion Letter of Review Board Refusing Registration to Ryan Abbot (Feb. 14, 2022).
[ii] Id. (Citing Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019).)
[iii] Id. (Citing Letter from Ryan Abbott to U.S. Copyright Office at 1 (Sept. 23, 2019) (“First Request”).)
[iv] Id. (Citing Refusal of First Request for Reconsideration from U.S. Copyright Office to Ryan Abbott at 1 (March 30, 2020).)
[v] Id at 4.
In Opposition to Copyright Protection for AI Works
This response to Dr. Ryan Abbott comes from David Newhoff.
On February 14, the U.S. Copyright Office confirmed its rejection of an application for a claim of copyright in a 2D artwork called “A Recent Entrance to Paradise.” The image, created by an AI designed by Dr. Stephen Thaler, was rejected by the Office on the longstanding doctrine which holds that in order for copyright to attach, a work must be the product of human authorship. Among the examples cited in the Copyright Office Compendium as ineligible for copyright protection is “a piece of driftwood shaped by the ocean,” a potentially instructive analog as the debate about copyright and AI gets louder in the near future.
What follows assumes that we are talking about autonomous AI machines producing creative works that no human envisions at the start of the process, other than perhaps the medium. So, the human programmers might know they are building a machine to produce music or visual works, but they do not engage in co-authorship with the AI to produce the expressive elements of the works themselves. Code and data go in, and something unpredictable comes out, much like nature forming the aesthetic piece of driftwood.
As a cultural question, I have argued many times that AI art is a contradiction in terms—not because an AI cannot produce something humans might enjoy, but because the purpose of art, at least in the human experience so far, would be obliterated in a world of machine-made works. It seems that what the AI would produce would be literally and metaphorically bloodless, and after some initial astonishment with the engineering, we may quickly become uninterested in most AI works that attempt to produce more than purely decorative accidents.
In this regard, I would argue that the question presented is not addressed by the “creative destruction” principle, which demands that we not stand in the way of machines doing things better than humans. “Better” is a meaningful concept if the job is microsurgery but meaningless in the creation or appreciation of art. Regardless, the copyrightability question does not need to delve too deeply into the nature or purpose of art because the human element in copyright is not just a paragraph about registration in the USCO Compendium but, in fact, runs throughout application of the law.
Doctrinal Oppositions to Copyright in AI Works
In the United States and elsewhere, copyright attaches automatically to the “mental conception” of a work the moment the conception is fixed in a tangible medium such that it can be perceived by an observer. So, even at this fundamental stage, separate from the Copyright Office approving an application, the AI is ineligible because it does not engage in “mental conception” by any reasonable definition of that term. We do not protect works made by animals, who possess consciousness that far exceeds anything that can be said to exist in the most sophisticated AI. (And if an AI attains true consciousness, we humans may have nothing to say about laws and policies on the other side of that event horizon.)
Next, the primary reason to register a claim of copyright with the USCO is to provide the author with the opportunity, if necessary, to file a claim of infringement in federal court. But to establish a basis for copying, a plaintiff must prove that the alleged infringer had access to the original work and that the secondary work is substantially or strikingly similar to the work allegedly copied. The inverse ratio rule applied by the courts holds that the more that access can be proven, the less similarity weighs in the consideration and vice-versa. But in all claims of copying, independent creation (i.e., the principle that two authors might independently create nearly identical works) nullifies any complaint. These are considerations not just about two works, but about human conduct.
If AIs do not interact with the world, listen to music, read books, etc. in the sense that humans do these things, then, presumably, all AI works are works of independent creation. If multiple AIs are fed the same corpus of works (whether in or out of copyright works) for the purpose of machine learning, and any two AIs produce two works that are substantially, or even strikingly, similar to one another, the assumption should still be independent creation. Not just independent, but literally mindless, unless again, the copyright question must first be answered by establishing AI consciousness.
In principle, AI Bob is not inspired by, or even aware of, the work of AI Betty. So, if AI Bob produces a work strikingly similar to a work made by AI Betty, any court would have to toss out BettyBot v. BobBot on a finding of independent creation. Alternatively, do we want human juries considering facts presented by human attorneys describing the alleged conduct of two machines?
If, on the other hand, an AI produces a work too similar to one of the in-copyright works fed into its database, this begs the question as to whether the AI designer has simply failed to achieve anything more than an elaborate Xerox machine. And hypothetical facts notwithstanding, it seems that there is little need to ask new copyright questions in such a circumstance.
The factual copying complication raises two issues. One is that if there cannot be a basis for litigation between two AI creators, then there is perhaps little or no reason to register the works with the Copyright Office. But more profoundly, in a world of mixed human and AI works, we could create a bizarre imbalance whereby a human could infringe the rights of a machine while the machine could potentially never infringe the rights of either humans or other machines. And this is because the arguments for copyright in AI works unavoidably dissociate copyright from the underlying meaning of authorship.
Authorship, Not Market Value, is the Foundation of Copyright
Proponents of copyright in AI works will argue that the creativity applied in programming (which is separately protected by copyright) is coextensive to the works produced by the AIs they have programmed. But this would be like saying that I have claim of co-authorship in a novel written by one of my children just because I taught them things when they were young. This does not negate the possibility of joint authorship between human and AI, but as stated above, the human must plausibly argue his own “mental conception” in the process as a foundation for his contribution.
Commercial interests vying for copyright in AI works will assert that the work-made-for-hire (WMFH) doctrine already implicates protection of machine-made works. When a human employee creates a protectable work in the course of his employment, the corporate entity, by operation of law, is automatically the author of that work. Thus, the argument will be made that if non-human entities called corporations may be legal authors of copyrightable works, then corporate entities may be the authors of works produced by the AIs they own. This analogizes copyrightable works to other salable property, like wines from a vineyard, but elides the fact that copyright attaches to certain products of labor, and not to others, because it is a fiction itself whose medium is the “personality of the author,” as Justice Holmes articulated in Bleistein.
The response to the WMFH argument should be that corporate-authored works are only protected because they are made by human employees who have agreed, under the terms of their employment, to provide authorship for the corporation. Authorship by the fictious entity does not exist without human authorship, and I maintain that it would be folly to remove the human creator entirely from the equation. We already struggle with corporate personhood in other areas of law, and we should ask ourselves why we believe that any social benefit would outweigh the risk of allowing copyright law to potentially exacerbate those tensions.
Alternatively, proponents of copyright for AI works may lobby for a sui generis revision to the Copyright Act with, perhaps, unique limitations for AI works. I will not speculate about the details of such a proposal, but it is hard to imagine one that would be worth the trouble, no matter how limited or narrow. If the purpose of copyright is to proscribe unlicensed copying (with certain limitations), we still run into the independent creation problem and the possible result that humans can infringe the rights of machines while machines cannot infringe the rights of humans. How does this produce a desirable outcome which does not expand the outsize role giant tech companies already play in society?
Moreover, copyright skeptics and critics, many with deep relationships with Big Tech, already advocate a rigidly utilitarian view of copyright law, which is then argued to propose new limits on exclusive rights and protections. The utilitarian view generally rejects the notion that copyright protects any natural rights of the author beyond the right to be “paid something” for the exploitation of her works, and this cynical, mercenary view of authors would likely gain traction if we were to establish a new framework for machine authorship.
Registration Workaround (i.e., lying)
In the meantime, as Stephen Carlisle predicts in his post on this matter, we may see a lot of lying by humans registering works that were autonomously created by their machines. This is plausible, but if the primary purpose of registration is to establish a foundation for defending copyrights in federal court, the prospect of a discovery process could militate against rampant falsification of copyright applications. Knowing misrepresentation on an application is grounds for invalidating the registration, subject to a fine of up to $2,500, and further implies perjury if asserted in court.
Of course, that’s only if the respondent can defend himself. A registration and threat of litigation can be enough to intimidate a party, especially if it is claimed by a big corporate tech company. So, instead of asking whether AI works should be protected, perhaps we should be asking exactly the opposite question: How do we protect human authorship against a technology experiment, which may have value in the world of data science, but which has nothing to do with the aim of copyright law?
About the IP Clause
And with that statement, I have just implicated a constitutional argument because the purpose of copyright law, as stated in Article I Clause 8, is to “promote science.” Moreover, the first three subjects of protection in 1790—maps, charts, and books—suggest a view at the founding period that copyright’s purpose, twinned with the foundation for patent law, was more pragmatic than artistic.
Of course, nobody could reasonably argue that the American framers imagined authors as anything other than human or that copyright law has not evolved to encompass a great deal of art which does not promote the endeavor we ordinarily call “science.” So, we may see AI copyright proponents take this semantic argument out for a spin, but I do not believe it should withstand scrutiny for very long.
Perhaps, the more compelling question presented by the IP clause, with respect to this conversation, is what it means to “promote progress.” Both our imaginations and our experiences reveal technological results that fail to promote progress for humans. And if progress for people is not the goal of all law and policy, then what is? Surely, against the present backdrop in which algorithms are seducing humans to engage in rampant, self-destructive behavior, it does seem like a mistake to call these machines artists.
By Austin Shaffer
The U.S. Copyright Office released its long-awaited report on 
Mason Law’s Arts & Entertainment Advocacy Clinic filed comments today with the U.S. Copyright Office detailing the frustrations and futilities experienced by everyday artists as they struggle with the DMCA system to protect their copyrights online.