In the hearing on the appeal of the U.S. Copyright Office's refusal to register his AI-created artwork ("A Return to Paradise," a copy of which appears above) and the district court's affirming of the refusal, programmer Stephen Thaler's counsel tried to argue that the Copyright Office and district court erred in not properly considering either (i) Thaler as copyright claimant as owner of the creator of the AI system (which he named “the Creativity Machine”) that created the image, or (ii) Thaler as author of the image as a work made for hire, since he created and owned the system. The Copyright Office claims Thaler waived any right to identify himself as claimant or author vis-a-vis his ownership/creation of the Creativity Machine.

While interesting, the three-judge panel of the D.C. Circuit signaled it might avoid addressing these questions altogether, asking Thaler's attorney where these claims of error by the district court (rather than the Copyright Office) appeared in briefing.  Thaler's attorney was unable to answer.

The appeal stemmed from the Copyright Office's refusal of registration on the basis that human authorship is required. In affirming the refusal, the district court noted, “Thaler must either provide evidence that the work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence.”  While Thaler's claim that he could be a copyright claimant while identifying the Creativity Machine as author seems to be a dead end, the question of whether it can be protected as a work made for hire is more novel, even if likely to similarly fail.  Under the work made for hire doctrine, an individual or even a (nonhuman) company may be identified as an author where the actual creator of the work was either an employee or commissioned third party.  As creator of the AI system, Thaler posits, he is the employer/commissioner, and so would be the human “author.”  While the question is interesting, it seems unlikely that this would affect the human-authorship requirement espoused by the Copyright Office and numerous courts.  While the identified “author” in the application would be human, the author as creator-in-fact would not.  Thus, Thaler is asking the court to overrule the current interpretation of the author requirements, an unlikely result.

But we may not even get the certainty of a decision on the merits from the appeals court, as it hinted that the question isn't even before it.  While there will certainly be more attempts to protect AI-generated works, it is unlikely this case will provide any way around the law as it stands, which does not permit such protection under copyright law.