Page:Thaler v. Perlmutter, Reply in Support of Cross-Motion for Summary Judgment.pdf/7

 definition of the term “person.” See ''Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136, 1140–41 (9th Cir. 2003); Marvel Characters, Inc. v. Kirby'', 726 F.3d 119, 143 (2d Cir. 2013).

The only statutory language Plaintiff points to in support of his position is the works made for hire provision, 17 U.S.C. § 201(b). See Dkt. 18 at 2–4. Plaintiff seems to reason that the use of “author” in this provision (which refers to a transfer of ownership rights to an employer or other party) somehow opens the floodgates to copyright protection for all variety of non-human authorship. See Dkt. 18 at 7–10. However, a review of section 201(b) reveals that Plaintiff’s argument misconstrues the meaning of a work made for hire. Section 201(b) provides that: "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."

This provision only states that the employer or “other person” who commissioned the work is considered to be the author for the purpose of the Act, it does not contemplate that any non-human is the literal author of the work. See § 201(b). Indeed, the provision presupposes that the creator of a work made for hire is human. Id. The statute enumerates two ways that a person or employer can gain authorship of a copyrighted work. The parties can either contract for a transfer of rights (for eligible types of works), or the work made for hire may arise out of an employment relationship. Id. Neither option is applicable to Plaintiff’s AI. With regard to the former, the statute requires that the parties expressly agree and memorialize their agreement in a signed written instrument. Id. Plaintiff’s “Creativity Machine” lacks the capacity to enter into a valid contract. See, e.g., ''Malone v. Saxony Coop. Apartments, Inc., 763 A.2d 725, 729 (D.C. 2000) (there must be a meeting of the minds on all essential terms for a contract to be valid); Relf v. Mathews'', 403 F. Supp. 1235, 1238 (D.D.C. 1975) (individual entering into a contract “must