Page:Thaler v. Perlmutter, Reply in Support of Cross-Motion for Summary Judgment.pdf/8

 have the legal and mental capacity to decide what is truly in his or her own interest”). With regard to the latter, a work made for hire in an employment relationship must have been created by an employee “within the scope of his or her employment.” § 201(b). Defendants’ Cross-Motion discusses the many reasons that the “Creativity Machine” cannot plausibly be Plaintiff’s employee or agent. See Dkt. 17 at 22–23.

In other words, regardless of who ultimately owns the copyrighted work (and regardless of whether we refer to these people or entities as owners or “authors”), the works made for hire provision is based on the understanding that the copyrightable work was originally created by a human. See § 201(b). Like the remainder of the Act, the works made for hire provision undermines Plaintiff’s claim that the Court can disregard the human authorship requirement. Plaintiff does not – and cannot – explain why the corporate acquisition of rights in a copyrighted work is equivalent to non-human creation of such a work. And, Plaintiff seems to acknowledge that the normal rule, in all other contexts, is that the creator of a work is considered its author. See Dkt. 17 at 4 (characterizing the works for hire provision as a “carve out”).

Third, Plaintiff misconstrues the case-law on human authorship. AI is an emerging technology, and neither Plaintiff nor Defendants are aware of cases specifically addressing whether AI can be considered an author under the Act. Appellate Courts have, however, considered analogous cases regarding works created by animals, nature, and other non-humans. See Dkt. 18 at 5–6 (citing Kelley v. Chicago Park District, 635 F.3d 290 (7th Cir. 2011) (involving “a living garden”), Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018) (involving