Page:Thaler v. Perlmutter, Memorandum Opinion (Dkt. 24).pdf/6

 III.DISCUSSION

Under the Copyright Act of 1976, copyright protection attaches “immediately” upon the creation of “original works of authorship fixed in any tangible medium of expression,” provided those works meet certain requirements. Fourth Estate v. [sic] Public Benefit Corporation v. Wall-Street.com, LLC, 139 S. Ct. 881, 887 (2019); 17 U.S.C. § 102(a). A copyright claimant can also register the work with the Register of Copyrights. Upon concluding that the work is indeed copyrightable, the Register will issue a certificate of registration, which, among other advantages, allows the claimant to pursue infringement claims in court. 17 U.S.C. §§ 410(a), 411(a); Unicolors v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 944–45 (2022). A valid copyright exists upon a qualifying work’s creation and “apart” from registration, however; a certificate of registration merely confirms that the copyright has existed all along. See Fourth Estate, 139 S. Ct. at 887. Conversely, if the Register denies an application for registration for lack of copyrightable subject matter—and did not err in doing so—then the work at issue was never subject to copyright protection at all.

In considering plaintiff’s copyright registration application as to “A Recent Entrance to Paradise,” the Register concluded that “this particular work will not support a claim to copyright” because the work lacked human authorship and thus no copyright existed in the first instance. First Refusal Letter at 1; see also Final Refusal Letter at 3 (providing the same rationale in the final reconsideration decision). By design in plaintiff’s framing of the registration application, then, the single legal question presented here is whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation.