Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/13

 labor” that “are founded in the creative powers of the [human] mind.” Id. (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879)). Similarly, the Compendium points out that “to qualify as a work of ‘authorship’ a work must be created by a human being” and “works that do not satisfy this requirement are not copyrightable.” Id. § 313.2. The Compendium provides numerous examples of works that lack the human authorship requirement necessary for copyrightability including “works produced by nature, animals, or plants.” Id. Most notably, the Compendium specifies that the Office “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” Id. Plaintiff applied to register the Work on November 3, 2018. See Dkt. 13-2. When Plaintiff submitted his application, he included a note for the Office that stated “[p]lease note this artwork was autonomously created by a computer algorithm running on a machine called the ‘Creativity Machine’. We are seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.” Id. at US_0000001. Plaintiff further filled in the “Author” field of the application as “Creativity Machine” and stated that the work created by the author was a “2-D artwork, Created [sic] autonomously by machine.” Id. at US_0000002. Plaintiff also checked a box that the work was a “work made for hire,” claiming ownership was transferred due to “[o]wnership of the machine.” Id.

On August 12, 2019, the copyright examiner assigned to the application refused registration. See Dkt. 13-4. The examiner’s decision explained that the Work “lacks the human authorship necessary to support a copyright claim” and pointed to Plaintiff’s statement in the application that the work was “created autonomously by machine.” Id. at US_0000005 (quoting