So, you’re saying there’s a chance! 😉 Stephen Thaler is still pursuing copyright protection for AI, this time for an AI-generated image.

As reported in Legaltech^® News (DC Circuit Weighs Copyright Protection for AI-Generated Image, written by Avalon Zoppo and available here), Judges on the U.S. Court of Appeals for the D.C. Circuit last month weighed for the first time a challenge to the U.S. Copyright Office’s denial of copyright protection for an artificial intelligence-generated Image.

The office denied computer scientist Stephen Thaler’s copyright application in 2018 for an image he created by an AI system he programmed, saying the lacked any human involvement. Judge Beryl A. Howell of the U.S. District Court for the District of Columbia agreed with the office, which prompted Thaler’s appeal.

Thaler argued through counsel that the Copyright Act doesn’t require a piece of work to have a human author to be eligible for copyright protection and that, nevertheless, he was involved in the image’s creation since he built the AI program that generated it.

“Authorship and originality mean that a work [was] created and stemmed from someone and came as a result of someone’s efforts,” Thaler’s attorney Ryan Abbott argued.

“That is all true,” added Abbott, a partner at Brown, Neri, Smith & Khan. “If not for Dr. Thaler building a machine and using the machine to make an image, the work wouldn’t exist.”

Judge Patricia Millett pressed Thaler’s theory that machines can be authors under copyright law, even if humans aren’t directly involved in an image’s creation.

“Kodak builds cameras, and so therefore, they can be the authors of pictures that someone takes?” Millett asked.

The Copyright Office argues that an 1884 U.S. Supreme Court decision bolsters its view that human input is a requirement. In Burrow-Giles Lithographic Co. v. Sarony, the high court said a portrait of Oscar Wilde qualified for copyright protection due to the human photographer’s creative choices.

But Abbott, during oral arguments and in Thaler’s brief, said technological advances must be considered in the analysis.

“Burrows-Giles stands for the principle that the act should be read expansively to accommodate and embrace technological advancement,” Thaler’s brief stated.  “Photographic technology mirrors, in many ways, the development and use of AI. Both can be thought of as creative tools, the use of which can result in the generation of new creative works with resultant public benefits.”

The judges also suggested Thaler waived the argument that he contributed to the image’s creation and is the owner and author under various legal theories, such as the “work-for-hire” doctrine that says employers own the work they commission.

Thaler’s application stated that the work “was autonomously created by a computer algorithm.”

“Why not just have Dr. Thaler say he’s the author?” said Judge Robert Wilkins. “You didn’t put that on the registration form and that’s not the issue before us. The issue before us is that the Copyright Office didn’t approve your desired registration the way your client articulated it on the form.”

Abbott said Thaler’s request for reconsideration did contend he could be the owner of the copyright since he made the machine, but the Copyright Office and district court did not acknowledge that.

Wilkins also pressed the Copyright Office’s lawyer on whether the government’s interpretation of the law as requiring human involvement for copyright protection would stifle innovation. Several professors acting as amici in the case argued that not extending copyright to AI-generated work may drive companies abroad to invest in protected creative opportunities.

Thaler’s pursuit of copyright protection for AI was previously denied by the U.S. Court of Appeals for the Federal Circuit back in 2022 for his machine called DABUS (Device for the Autonomous Bootstrapping of Unified Sentience), which was used to create two products (a food container with a surface that helps with insulation by using fractal geometry, and a flashing light for attracting attention in emergencies). Thaler, who holds over 70 patents, is nothing if not persistent. 🙂

Hat tip to Melissa “Rogo” Rogozinski for the heads up on this story. Rogo discusses the impact of AI on marketing and sales and the copyright considerations in her blog here.

So, what do you think? Should there be copyright protection for AI-generated images or anything else generated by AI? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot submitting a patent application with the US Patent and Trademark Office”. It almost spelled it correctly! 😀

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