Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/25

 arrangement of visual elements in the Work is not determinative. Rather, the Work’s defect is that its “author” is not human and, therefore, it cannot be a “work of authorship” under § 102(a). The Court should not credit Plaintiff’s statement, made for the first time in his Motion, that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by Dr. Thaler,” or that “the AI only operates at Dr. Thaler’s direction.” Dkt. 16 at 25–26. These unsubstantiated allegations were not part of the Administrative Record before the Copyright Office. The Office was entitled to rely on Plaintiff’s contemporaneous statements and “accept[] as a threshold matter Thaler’s representation that the Work was autonomously created by artificial intelligence without any creative contribution from a human actor.” Dkt. 13-8 at US_0000032. In any event, even if Plaintiff “created an AI that he directed to create artwork,” Dkt. 16 at 1, that does not mean that he directed the specific contents of any work, which is what copyright protection requires.