Some Initial Thoughts on the DC Circuit’s Rejection of AI Authorship

In a surprise to few people, the D.C. Circuit Court of Appeals unanimously affirmed the District Court’s decision that the Copyright Office had not abused its discretion in denying registration to the computer program / AI engine “The Creativity Machine” for the artwork “A Recent Entrance to Paradise.” Stephen Thaler, the owner, creator, and operator of The Creativity Machine, brought the suit. At argument his counsel tried to shift to an argument that Thaler was the author through his creation of The Creativity Machine, but the Court deemed that argument waived, as had the court below. Thaler’s attorney Ryan Abbot has indicated that he intends to appeal. Presumably any petition to the Supreme Court will focus on the copyrightability by AI issue and not the shift to arguing Thaler was the author, which the DC Circuit clearly disdained and the Supreme Court will almost certainly have no interest in.

The Court’s decision was focused entirely on the copyright statute and expressly avoided consideration of the question of whether the constitution permitted registration of AI works, relying on the canon of constitutional avoidance. In particular, the decision was focused on certain attributes unique to the human condition being specifically enumerated in Title 17, enumerating the ability to “have property, traditional human lifespans, family members, domiciles, nationalities, mentes reae, or signatures.” Op. at 12. This part largely mirrors the Copyright Office’s position in briefing. The Court makes clear that not all of these are indicia of inability to register a copyright, noting Belford v. Scribner and Melissa Homestead’s work on coverture and copyright, but rather that these taken together indicate that machines are excluded from copyright under the copyright statute.

The Court also noted the longstanding U.S. Copyright Office position that human authorship is required and accorded substantial weight to that position. In particular, noting the National Commission on New Technology Uses of Copyrighted Works (CONTU) commission hearings and report make this position clear, the Court believed that Congress was “adopt[ing] an agency’s interpretation of a term” with the 1976 Act, pursuant to Sackett v. EPA. I’m not sure that’s right – the 1976 Copyright Act was essentially written before the 1965 Annual Report of the U.S. Copyright Office was published, and certainly was essentially complete for years before the 1973 First Compendium. In fact, in 1973 Congress created CONTU specifically asking the Commission to inter alia “study and compile data on…the creation of new works by the application or intervention of such automatic systems or machine reproduction.” The fact that in 1978 the commission reported that the current approach was correct is challenging to impute back to 1976. The fact that Congress was concerned about the issue and unclear on the correctness of the current approach regarding human authorship seems a better takeaway than saying the approach at the time was simply incorporated into the 1976 Act. At a minimum it doesn’t seem that the issue was “well-settled” in 1976.

The Court had an interesting line about the purposes of copyright, falling heavily on the incentive theory view of copyright law, noting that copyright “is not extended as ‘a special reward’ to the author, but rather ‘to encourage the production of works that others might reproduce more cheaply.'” Op. at 3. This is followed by the famous quote from U.S. v. Loews that “[c]opyright law “‘makes reward to the owner a secondary consideration.'”

I also think the Court’s gloss on the Copyright Office’s standard for copyrightability is interesting, namely that “[t]he rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself.” Nothing radical, but I suspect the line will be quoted down the road.

Finally, the Court’s shout-out to Star Trek: The Next Generation – more specifically Data’s Ode to Spot – is getting a little attention, to wit:

Humans at some point might produce creative non-humans capable of responding to economic incentives. Science fiction is replete with examples of creative machines that far exceed the capacities of current generative artificial intelligence. For example, Star Trek’s Data might be worse than ChatGPT at writing poetry, but Data’s intelligence is comparable to that of a human being. See Star Trek: The Next Generation: Schism (Paramount television broadcast Oct. 19, 1992) (“Felis catus is your taxonomic nomenclature, an endothermic quadruped, carnivorous by nature”). There will be time enough for Congress and the Copyright Office to tackle those issues when they arise.

Let me know what you think led to this and whether the Trek fan is the Judge or a clerk. or both!