Copyright Office Review Board Reaffirms That Human Authorship Is A Prerequisite For Copyright Protection

• Published date: 25 March 2022
• Subject Matter: Intellectual Property, Copyright
• Law Firm: Cowan Liebowitz & Latman PC
• Author: Sarah Sue Landau

The Copyright Act protects "original works of authorship." 17 U.S.C. ' 102(a) (emphasis added). Courts have uniformly understood "authorship" to refer to a quality that is uniquely "human," often alluding to the nexus between the human mind and creative expression. For example, some of the earliest copyright cases defined copyright as "the exclusive right of man to the production of his own genius or intellect." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884). See also Trade-Mark Cases, 100 U.S 82, 94 (1879) (explaining that copyright law only protects "the fruits of intellectual labor" that are "founded in the creative powers of the mind").

In accordance with this understanding, the U.S. Copyright Office has made it its policy to register only works created by human beings. The Copyright Office Compendium, which serves as a guide to policies and procedures of the Copyright Office, explicitly states that works created by nature, animals or plants cannot be registered. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices ' 313.2 (giving the following examples of works not eligible for copyright protection: a photograph taken by a monkey; a mural painted by an elephant; a claim based on the appearance of actual animal skin; a claim based on driftwood that has been shaped and smoothed by the ocean; a claim based on cut marks, defects, and other qualities found in natural stone; and an application for a song naming the Holy Spirit as the author of the work).

The Compendium adds 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."

Despite this clear policy, in 2018, Steven Thaler, applied to register a two-dimensional image created by Artificial Intelligence ("AI") entitled "A Recent Entrance to Paradise." Thaler identified the author of the work as "Creativity Machine" and stated that the work was "autonomously created by a computer algorithm running on a machine" and was made "without any creative contribution from a human actor." Consistent with its longstanding policy, the...