Page:A Recent Entrance to Paradise (USCO Review Board, 2022).pdf/2

Ryan Abbott, Esq. Brown, Neri, Smith & Khan, LLP II.ADMINISTRATIVE RECORD

On November 3, 2018, Thaler filed an application to register a copyright claim in the Work. The author of the Work was identified as the “Creativity Machine,” with Thaler listed as the claimant alongside a transfer statement: “ownership of the machine.” In his application, Thaler left a note for the Office stating that the Work “was autonomously created by a computer algorithm running on a machine” and he was “seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.” In an August 12, 2019, letter, a Copyright Office registration specialist refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.” Initial Letter Refusing Registration from U.S. Copyright Office to Ryan Abbott (Aug. 12, 2019).

Thaler subsequently 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.” Letter from Ryan Abbott to U.S. Copyright Office at 1 (Sept. 23, 2019) (“First Request”). After reviewing the Work in light of the points raised in the First Request, the Office re-evaluated the claims and again concluded 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.” Refusal of First Request for Reconsideration from U.S. Copyright Office to Ryan Abbott at 1 (March 30, 2020). The Office also stated that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.” Id. at 1–2.

Now, in a second request for reconsideration, pursuant to 37 C.F.R. § 202.5(c), Thaler renews his arguments that the Office’s human authorship requirement is unconstitutional and unsupported by case law. Letter from Ryan Abbott to U.S. Copyright Office (May 27, 2020) (“Second Request”). The Second Request repeats the same arguments from the First Request, largely advancing public policy arguments that the Office “should” register copyrights in machine-generated works because doing so would “further the underlying goals of copyright law, including the constitutional rationale for copyright protection.” Second Request at 2. In response to the Office’s citation of relevant case law addressing human authorship, Thaler asserts that “there is no binding authority that prohibits copyright for [computer-generated works],” id.; that copyright law already allows non-human entities to be authors under the work made for hire doctrine, id. at 4; and ultimately that the Copyright Office “is currently relying upon non-binding judicial opinions from the Gilded Age to answer the question of whether [computer-generated works] can be protected.” Id. at 7.

III.DISCUSSION

The Board accepts as a threshold matter Thaler’s representation that the Work was autonomously created by artificial intelligence without any creative contribution from a human actor: “As a general rule, the U.S. Copyright Office accepts the facts stated in the registration