You’ve likely heard of disputes over tech companies using copyrighted material to train artificial intelligence systems, but what about battles over whether work produced autonomously by AI systems can be copyrighted? At the justices private conference on Friday, they are expected to address a pending petition for review on the latter issue, which aims to change the U.S. Copyright Office’s approach to AI authors.
The petition in Thaler v. Perlmutter comes from Stephen Thaler, a computer scientist who, as he puts it, “develops, owns, and applies AI systems capable of generating creative output including visual art in the absence of a direct contribution from a traditional human author.” In 2018, Thaler filed an application for copyright protection for one such piece of AI-generated art, an image titled “A Recent Entrance to Paradise.” On the application, Thaler “disclosed that the submission lacked traditional human authorship” because it had been “autonomously created” by an AI system, but he further explained that he owned “the AI that generated the AI-Generated Work and should thus be the owner of any copyright,” according to the petition.
In August 2019, the Copyright Office declined to register the copyright, citing its policy against copyrighting works without a human author, which applies even when a human created the AI system that then created the work in question. When it refused to reconsider this decision, Thaler sued the Copyright Office, contending that its policy on human authorship must be changed.
The lower courts sided with the Copyright Office, upholding its denial of Thaler’s application and rejecting Thaler’s claims about the office’s authorship requirements. While the Copyright Act of 1976 “does not define the word ‘author,’” it’s still clear that machines are not authors under the law, according to the U.S. Court of Appeals for the District of Columbia Circuit, “[b]ecause many of the Copyright Act’s provisions make sense only if an author is a human being,” such as references to an author’s lifespan and death.
In his Supreme Court petition, Thaler contended that the Copyright Office’s authorship policy creates “a chilling effect on anyone else considering using AI creatively” and works against the goal of copyright protection – “namely, the creation and dissemination of creative works.” The justices must get involved, Thaler continued, because the question of how to apply copyright laws to AI systems “has never been more economically and artistically relevant.”
Initially, the federal government waived its right to respond to Thaler’s petition for review, but the court requested a response. In the government’s brief, filed in January, U.S. Solicitor General D. John Sauer urged the justices to deny Thaler’s petition, arguing that the D.C. Circuit’s decision was correct and that no federal court of appeals has rejected the Copyright Office’s human authorship requirement. Under the office’s policy, creators can still use AI to create a copyrightable work so long as they remain in control of the final product, Sauer added. “AI can be a creative tool like many others at an artist’s disposal—such as guitar pedals in sound recordings or cameras in photography.”
The justices are set to consider this petition for the first time on Friday. In April 2023, the Supreme Court denied review in a similar case that Thaler brought against the U.S. Patent and Trademark Office over its refusal to issue patents for AI-generated inventions.