Page:A Recent Entrance to Paradise (USCO Review Board, 2022).pdf/3

Ryan Abbott, Esq. Brown, Neri, Smith & Khan, LLP materials.”, § 602.4(C) (3d ed. 2021) (“”). But copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the [human] mind.” § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879)); see also  § 313.2 (the Office will not register works “produced by a machine or mere mechanical process” that operates “without any creative input or intervention from a human author” because, under the statute, “a work must be created by a human being”). So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. He has done neither.

Thaler does not assert that the Work was created with contribution from a human author, so the only issue before the Board is whether, as he argues, the Office’s human authorship requirement is unconstitutional and unsupported by case law. Currently, “the Office will refuse to register a claim if it determines that a human being did not create the work.” § 306. Under that standard, the Work is ineligible for registration. After reviewing the statutory text, judicial precedent, and longstanding Copyright Office practice, the Board again concludes that human authorship is a prerequisite to copyright protection in the United States and that the Work therefore cannot be registered.

The Copyright Act affords protection to “original works of authorship” that are fixed in a tangible medium of expression. 17 U.S.C. § 102(a). The phrase “original work of authorship” was “purposely left undefined” by Congress in order to “incorporate without change the standard of originality established by the courts under the … [1909] copyright statute.”, at 51 (1976). The term is “very broad,” id. at 52, but its scope is not unlimited. Congress chose this language to encompass a smaller set of creative works than could be protected under the Constitution. Because of this gap, the Act leaves “unquestionably other