James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “A PORTRAIT OF AN ARTIST AS A YOUNG … CODE(R)?: Why Understanding Artificial Intelligence & Real Creativity Shouldn’t Make the Artist a Dunsel.”
Following is an excerpt:
In my recent attempt at spring cleaning, I mentioned that “the Copyright Office’s ‘refusal to register a two-dimensional artwork claim in the work titled ‘A Recent Entrance to Paradise’ (‘Work’).” I also observed that “[e]ven with Roombas and Creativity Machines doing their jobs well, these issues remain a little messy and will need to be considered further.” I just thought I would have a little longer respite.
But that is not the case because the party denied registration, Dr. Stephen Thaler, filed suit on June 2, 2022, challenging that denial. So, we are right back to confronting the muddled questions around what makes something copyrightable, arising now in the context of a contested case concerning a:
copyright application [that] identified the “author” of the Work as the “Creativity Machine,” and Steven Thaler was listed as the owner of that machine who “was ‘seeking to register this computer-generated work as a work-for-hire to the owner of the Creativity Machine.’” The application was rejected because it “lacks the human authorship necessary to support a copyright claim,” and Thaler appealed that rejection to the Review Board of the United States Copyright Office (“Board”). In a recent, seven-page, single-spaced ruling, the Board affirmed that rejection, finding that “the nexus between the human mind and creative expression” remains “a prerequisite for copyright protection.”
[Flynn, Spring Cleaning: Decluttering From Recent Intellectual Property Detritus & Dusting Off Old Posts]
To address this question, let us first look at what Thaler is contending.
At its base, Thaler argues that he owns the copyright in the Work, but a computer was the author of the Work. Thaler’s complaint admits that he developed the advanced artificial intelligence system that generated the work in question. Complaint, par. 1 [As an aside, the Work at issue is entitled “A Recent Entrance to Paradise,” which sounds a bit like an AI-generated title to replace Stairway to Heaven, which has also appeared in these posts before. Of course, it isn’t clear if Thaler’s AI program generated just the Work, or the title as well]. But, despite initiating the creative process, Thaler pleads that the AI system itself “generat[es] creative output … under conditions in which no natural person contributed to the work,” and that the work in question here was “[c]reated autonomously by machine,” “lacked traditional human authorship,” and that “AI can autonomously create works…” Complaint, par. 1, 14, 17, 20, 36. Thus, as expressed in one reading of this post’s title, Thaler argues that the artist that created the Work in question is the recently developed (read “young”) code from which the work sprang.
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Managing Director / Member of the Firm
