Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/15

 reliance on the Supreme Court’s opinions in the Trade-Mark Cases and Sarony, describing them as “non-binding judicial opinions from the Gilded Age” that did not foreclose protection for machine-generated works. Id. at US_0000015.

The Office denied Plaintiff’s request for reconsideration on March 30, 2020. See Dkt. 13-6. In a letter, the Office of Registration Policy & Practice again explained that the Trade-Mark Cases and Sarony limited copyright law to protecting only the creations of human authors. Id. at US_0000019. The Office further noted that Plaintiff explicitly admitted the work was “autonomously generated by an AI” and had “provided no evidence on sufficient creative input or intervention by a human author in the Work.” Id. Finally, it found the policy arguments were “insufficient to convince the Office to abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.” Id. at US_0000019–20.

Plaintiff appealed this decision to the Copyright Office Review Board, a body that provides final review of registration refusals and whose three members are appointed by the Register of Copyrights and the Office’s General Counsel. See 37 C.F.R. § 202.5(c), (f), (g). Because Plaintiff did “not assert that the Work was created with contribution from a human author,” the “only issue before the Board” was whether the Office’s refusal to register non-human works violated the law. Dkt. 13-8 at US_0000033. After considering the statute and relevant law, the Board found that the Office correctly interpreted copyright law to require human authorship. Id.