Human Creativity v. Machine Autonomy In Identifying Copyright Authors Of Generative NFTs

• Published date: 24 February 2022
• Law Firm: Rothwell, Figg, Ernst & Manbeck, P.C.
• Author: Ms Jennifer Maisel

Generative content is having a moment in the form of non-fungible tokens (NFTs) powered by blockchain platforms. Continued investment and growth in the NFT market is bringing into the mainstream legal edge cases concerning the use of digital technology to create intellectual property. Recently, the U.S. Copyright Office's Review Board issued a decision addressing whether an artificial intelligence "Creativity Machine" can meet the statutory requirements of an author for copyright purposes. See Decision dated Feb. 14, 2022, available here . The Board held that the Creativity Machine does not meet the statutory requirements of an author, consistent with the Office's position that an author must be a human being.

This article explores what the Board's decision means more broadly for generative content, including generative NFTs, and offers some practical guidance for those looking to secure copyright protection.

1. The Human Authorship Requirement for Copyrighted Works in the United States

Statutorily, a copyright in a work "vests initially in the author or authors of the work." 17 U.S.C. ' 201(a). While "author" is not explicitly defined, the U.S. Copyright Office has taken the position that the author must be a human being:

The copyright law only protects "the fruits of intellectual labor" that "are founded in the creative powers of the mind." Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to "original intellectual conceptions of the author," the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

Compendium of U.S. Copyright Office Practices, ' 306. The Copyright Office further highlights that the "crucial question is 'whether the 'work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the...