"Paradise Lost"
... a failed attempt to assert copyright registration for AI generated painting
In an attempt to assert copyright registration for an AI generated painting, facts matter. Computer system ("Creativity Machine") owner ("plaintiff"), asserted in a U.S. copyright registration application that his computer system, generated the work, "A recent Entrance to Paradise," (shown here) on its own and without any human involvement.
The U.S. Copyright refused the registration on the grounds that it lacked authorship (i.e. a human author). See THALER V. PERLMUTTER, 1:22-cv-01564, (D.D.C.).
The computer owner (plaintiff) appealed the Copyright Office's rejection to federal court. In his appeal, he asserted new facts not in the copyright registration or before the Copyright Office, including that he..
- "provided instructions and directed his AI to create the Work",
- "the AI s entirely controlled by [him]", and
- “the AI only operates at [his] direction.”
However, since these facts were not asserted in the copyright application, the court rejected their consideration in its decision. As a result the court agreed with the U.S. Copyright Office's refusal to grant copyright registration for the AI generated work. See THALER V. PERLMUTTER, 1:22-cv-01564, (D.D.C.).
Some commentators hail this copyright ruling as a victory for authors, artists, actors, and the like, over AI generated content for "would be" copyrightable works. The thinking is that if AI generated content is not copyrightable, then the AI generated content could be copied. And, without copyright protection, studios, publishers, television networks, etc., would be less likely to replace writers and actors with AI generated content.
Well, not so fast.... While this case underscores the principle that for U.S. copyright registration, the work must be the authorship of humans, the court did not dismiss the notion that AI generated content, that was directed to be produced by a human and controlled by a human could be subject to copyright registration.
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© Stephen J. Weyer 2023
(* Disclaimer: All views expressed are exclusively those of the authors and do not reflect the views of Stites & Harbison, PLLC)
