Whose content is it anyway? This is one of the questions that many hope will be answered by a federal court in Thaler v. Perlmutter. In June 2022, computer scientist Dr. Stephen Thaler sued the U.S. Copyright Office to redress the denial of his application to register copyright in his AI system's visual output under the Office's "Human Authorship Requirement." A few months later, the Office again enforced this requirement, reversing its decision to register Kristina Kashtanova's illustrated comic book, Zarya of the Dawn, after it became clear that AI was used to generate those images. While Thaler now asks a U.S. federal court to determine whether an AI system can author copyrightable work, and to effectively overrule the Office's "Human Authorship Requirement," it remains to be seen whether the court will tackle those broad issues, or instead narrowly focus on whether the Office had reasonable grounds to deny Thaler's application.
Background
Thaler is no stranger to the U.S. federal court system. Earlier this year, the U.S. Supreme Court declined to review Thaler v. Vidal, Case No. 21-2347 (Fed. Cir. 2022), a ruling that found Thaler's Device for the Autonomous Bootstrapping of Unified Sentience (DABUS)'an AI system'was not capable of inventorship because it was not a natural person. Thaler's instant suit against the Office concerns a different AI system dubbed Creativity Machine, an artificial neural network that can generate two-dimensional artwork in a manner that arguably mimics human creativity. In November 2018, Thaler filed a copyright application with the Office to register Creativity Machine output: a two-dimensional image titled "A Recent Entrance to Paradise" (the "Work"). Thaler listed himself as claimant and Creativity Machine as author, and the Office refused the application because it ran afoul of the Human Authorship Requirement.
In so doing, the Office relied on Burrow-Giles Lithographic Co. v. Sarony...
