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of human creativity must have occurred in order for the Book to be copyrightable” because “it is not creations of divine beings that the copyright laws were intended to protect”). Similarly, a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author’s “children,” “widow,” “grandchildren,” and “widower,”—terms that “all imply humanity and necessarily exclude animals.” Naruto v. Slater, 888 F.3d 418, 426 (9th Cir. 2018); see also Kelley v. Chicago Park Dist., 635 F.3d 290, 304 (7th Cir. 2011) (rejecting a copyright claim in a “living garden” because “[a]uthorship is an entirely human endeavor” and “a garden owes most of its form and appearance to natural forces”) (internal citations omitted); Satava v. Lowry, 323 F.3d 805, 813 (9th Cir. 2003) (finding depictions of jellyfish not protected by copyright because material “first expressed by nature are the common heritage of humankind, and no artist may use copyright law to prevent others from depicting them”). These court decisions are reflected in the Office’s guidance in the Compendium, which provides examples of works lacking human authorship such as “a photograph taken by a monkey” and “an application for a song naming the Holy Spirit as the author.” Compendium (Third) § 313.2. While the Board is not aware of a United States court that has considered whether artificial intelligence can be the author for copyright purposes,[1] the courts have been consistent in finding that non-human expression is ineligible for copyright protection.
Federal agencies have followed the courts. In the 1970s, questions about the impact of computing technology on the copyright system led to the creation of the National Commission on New Technological Uses of Copyrighted Works (“CONTU”). CONTU’s mandate was, in part, to study “the creation of new works by the application or intervention of [] automatic systems of machine reproduction.” National Commission on New Technological Uses of Copyrighted Works, Pub. L. 93-573, § 201(b)(2), 88 Stat. 1873, 1873 (1974). After conducting its review, CONTU determined that the existing judicial construction of “original work[s] of authorship” as requiring human authorship was sufficient to enable protection for works created with the use of computers and thus “no amendment [to copyright law] is needed.” CONTU, Final Report at 1 (1978). As CONTU explained, “the eligibility of any work for protection by copyright depends not upon the device or devices used in its creation, but rather upon the presence of at least minimal human creative effort at the time the work is produced.” Id. at 45–46 (noting that “[t]his approach is followed by the Copyright Office today”).
The CONTU Report mirrors the views of the Copyright Office. A decade before passage of the 1976 Copyright Act, the annual report of the Register of Copyrights considered when copyright protection could vest in expressive works created with a computer. The Register concluded that human authorship was required:
The crucial question appears to be whether the “work” is basically one of human authorship, with the computer merely being an assisting instrument, or whether the traditional element of authorship in the work (literary, artistic or musical
- ↑ It appears, however, that the Eastern District of Virginia held that artificial intelligence systems cannot claim inventorship of patents. Thaler v. Hirshfeld, No. 1:20-cv-903, 2021 U.S. Dist. LEXIS 167393, at *16–18 (E.D. Va. Sep. 2, 2021) (concluding that under the Patent Act, “an ‘inventor’ must be a natural person” and upholding refusal of a patent application). Though the court’s opinion was based on construction of the Patent Act, rather than the Copyright Act, the similarity of the court’s statutory analysis to that in the copyright cases relied on by the Board supports the conclusion here.
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