Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/29

 treatment of the work made for hire doctrine assumed that the employee in question is a human. See CCNV, 490 U.S. at 751–52. The factors the Court provided in CCNV for evaluating whether an agent is an employee include “the provision of employee benefits” and “the tax treatment of the hired party.” Id. A machine cannot satisfy these elements: it neither receives benefits nor pays taxes.

Moreover, CCNV’s importation of the common-law agency doctrine into the Act’s “employee” determination required a human. In CCNV, the Court explained that Congress “intended to describe the conventional master-servant relationship as understood by common-law agency doctrine” in referencing employees. CCNV, 490 U.S. at 739–40. And it is clear that agents must be human: “agency” describes “the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” § 1.01 (emphasis added). Because the Creativity Machine cannot be an agent, it correspondingly cannot be an employee under the work made for hire doctrine.