Current AI Copyright Cases – Part 2

Cases/Disputes Involving AI Copyright Authorship

As the second in our Current AI Copyright Cases series, this blog highlights disputes involving AI copyright authorship (part one focused on AI cases related to training data issues). As creators continue to test the boundaries and creativity of AI technology, these challenges with the United States Copyright Office (USCO) detail important considerations of human and AI authorship and if copyright registration allows for AI-related authorship.  

Thaler v. Perlmutter

In June 2022, Dr. Stephen Thaler filed suit against Shira Perlmutter, the Register of Copyrights and Director of the United States Copyright Office (USCO), as well as the USCO, arguing that the USCO’s denial of his copyright registration for a work claimed to be authored by AI is an arbitrary and capricious agency action and not in accordance with the law. In November 2018, Thaler applied to register an image produced by one of Thaler’s AI systems, called the “Creativity Machine,” which produced the two-dimensional image titled “A Recent Entrance to Paradise.” The Copyright Office denied the copyright registration application because the image “lack[ed] the human authorship necessary to support a copyright claim.”

Thaler subsequently filed two requests for reconsideration to the USCO in September 2019 and May 2020. Each reconsideration was denied by the USCO, which explained that since copyright law is limited to “original intellectual conceptions of the author,” it refused to register the claim because it determined a human being did not create the image. The Office also asserted that Plaintiff had failed to either provide evidence that the image is the product of human authorship or convince the USCO to “depart from a century of copyright jurisprudence.”

On January 10, Thaler filed a motion for summary judgment on the grounds that no genuine issue as to any material fact exists and that he is entitled to judgment as a matter of law. While Thaler confirmed that the submission lacked traditional human authorship, he argued that the USCO’s human authorship requirement was unsupported by law. Largely basing his copyright ownership arguments on common law property principles, Thaler claimed that this denial creates “a novel requirement for copyright registration that is contrary” to the language within the Copyright Act, contrary to the purpose of the Act, and contrary to the Constitutional to promote the progression of science.

On February 7, the Copyright Office filed a response to Thaler’s motion for summary judgment, asking the court to deny Thaler’s motion and grant its cross motion. The Office cites to the many sections of the Copyright Office Compendium that address the “longstanding requirement” of human authorship, explaining that registration decisions that rely on the Compendium cannot be deemed to be “arbitrary and capricious”—and therefore cannot, as Thaler claims, run afoul of the Administrative Procedures Act (APA). The Office also reiterates that the language of the Copyright Act, Supreme Court precedent, and federal court decisions refusing to extend copyright protection to non-human authorship all support its position. Finally, the motion argues that the court must reject Thaler’s arguments that he is the owner of the work based on common law or the work made for hire doctrine “(1) it does not affect whether a work is within the scope of copyright; and (2) the Work did not meet the statutory requirements that the work be prepared either by an ‘employee’ or pursuant to ‘a written instrument.’”

On March 7, Thaler submitted an opposition to the Office’s motion for summary judgment. He argues that contrary to the Office’s arguments, the plain language of the Copyright Act and its constitutional mandate does not limit copyright protection to human authorship and that historically, non-human authorship has been legitimized by recognizing copyright protections for anonymous and pseudonymous works and through the work made for hire doctrine. The brief also argues that the Copyright Office is not entitled to deference under the Administrative Procedure Act (APA) because while it is empowered to interpret its own regulations, it is not empowered to interpret the Copyright Act itself.

Most recently, on April 5, the Copyright Office filed a reply to Stephen Thaler’s opposition to its motion for summary judgment. The reply reiterates the Office’s position that Thaler’s assertions that the Copyright Act allows for non-human authorship are incorrect and not supported by statutory text. Once again arguing that Thaler misconstrues the work made for hire doctrine, the reply explains that Thaler’s “Creativity Machine” lacks the capacity to enter into a valid contract and cannot plausibly qualify as Thaler’s agent or employee. Going on to refute Thaler’s argument that case law supports non-human authorship, the reply cites appellate court decisions that have uniformly rejected authorship for things like celestial beings and animals. Addressing policy issues, the Office asserts that Thaler disclaims the importance of economic incentives for human creators. Finally, the Office explains that courts’ deference to the Copyright Office is routine and that its decision is not arbitrary and capricious.

Kris Kashtanova’s Attempt to Register “Zarya of the Dawn” with the Copyright Office

AI and copyright authorship issues came up again for the Office, but this time it involved an artist who claimed to be the author of a work though AI was used in the creation process, In September 2022, Kris Kashtanova, a New York City artist and AI consultant and researcher, received a copyright registration for a graphic novel titled Zarya of the Dawn made using the commercial AI art generator Midjourney. This registration was subsequently widely publicized as the first known instance of an AI-generated work being successfully registered with the USCO.

However, on October 28, 2022, Kashtanova, received notice from the U.S. Copyright Office (USCO) that the registration may be canceled. The USCO initiated this notice on the basis that “the information in [her] application was incorrect or, at a minimum, substantively incomplete” due to Kashtanova’s use of an artificial intelligence generative tool (“the Midjourney service”) as part of the creative process.

In November 2022, Kashtanova responded to the Office’s correspondence, asserting that graphic novel reflects Kashtanova’s authorship in various ways. They claimed that the visual structure of each image, the selection of the poses and points of view, and the juxtaposition of the various visual elements within each picture were consciously chosen. In this respect, they argued that the creative selections are similar a photographer’s selection of a subject, a time of day, and the angle and framing of an image.

Kashtanova also argued that, even if their work does not meet this legal standard of authorship, the work should still be copyrightable as a compilation under § 101 of the Copyright Act. The Copyright Act defines a compilation as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.” Kashtanova claimed that the definition of a compilation does not require that the materials used to create a compilation be copyrightable themselves, and that the Midjourney-associated images used in the work should be classified as data.

On February 21, 2023, the USCO issued a response to Kashtanova’s November 2022 correspondence, concluding that Kashtanova “is the author of the Work’s text as well as the selection, coordination, and arrangement of the Work’s written and visual elements.” While the USCO granted the registration as to those elements, it concluded that images in the work that were generated by the Midjourney technology are not the product of human authorship, and therefore do not receive copyright protections. The USCO explains that “because the current registration for the Work does not disclaim its Midjourney-generated content, [it] intends to cancel the original certificate issued to Kashtanova and issue a new [certificate] covering only the expressive material that she created.”


As these cases and disputes continue to move in their respective processes in the courts and the Copyright Office, we will begin to get definitive answers to the increasingly complex questions surrounding AI authorship. Already, the Office has issued a notice of “clarification” in its registration practices for examining and registering works that contain material generated by the use of AI technology. The Office notes that this statement of policy “describes how the Office applies copyright law’s human authorship requirement to applications to register such works” and highlights its considerations in authorship and analysis of the authorship elements within the production of a work. We describe a few takeaways to consider from that guidance in this blog post. These resolutions are likely to provide more clarity as to what is considered human authorship and whether AI technology can “author” works or “own” copyrighted works, resulting in a lasting impact on the intersection of AI and copyright law.

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