Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/24

 2004)). Copyright protection for works created entirely by machines would be even more extraordinary.

Finally, Plaintiff’s Motion omits Kelley, a case cited by the Office. See Dkt. 13-8 at US_0000035. In Kelley, the Seventh Circuit held that a “living garden” was not copyrightable, in part, because “works owing their form to the forces of nature cannot be copyrighted.” 635 F.3d at 304. The Seventh Circuit cited the Office and explained that because “authorship is an entirely human endeavor,” “[a]uthors of copyrightable works must be human.” Id. at 304 (citing §§ 202.02(b), 503.03(a) and  § 3:19 (2010)). Even though the garden in Kelley was the product of some human involvement, it was “not the kind of authorship required for copyright.” 635 F.3d at 304. Rather, the constituent elements of the garden “originate[d] in nature, not in the mind of the [human] gardener.” Id. The same is true here—the Work’s visual elements are not the product of human endeavor but were instead “autonomously created by a computer algorithm.” Dkt. 13-2 at US_0000001. Plaintiff accurately states that the scope of “works” covered by the Act reflects a deliberate choice by Congress regarding the scope of copyrightable material, including what works are “work[s] of authorship,” 17 U.S.C. § 102(a). Dkt. 16 at 7–9. However, Plaintiff’s claim that the Work is “adequately creative” because it “contains visual elements in a novel way” misses the point. Id. at 9. The question of the category of the Work or its creativity is not the inquiry on which the Office based its refusal decision. See Dkt. 13-8. Section 102 protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Creativity and originality are required, but not sufficient for protection; it is only the creativity and originality of “authors”—humans—that are eligible for copyright. In this case, the