Brown, Neri, Smith & Khan, LLP
expression or elements of selection, arrangements, etc.) were actually conceived and executed not by man but by a machine.
U.S. Copyright Office, Sixty-Eighth Annual Report of the Register of Copyrights for the Fiscal Year Ending June 30, 1965, at 5 (1966).
For this reason, the Compendium of U.S. Copyright Office Practices—the practice manual for the Office—has long mandated human authorship for registration. After enactment of the 1976 Copyright Act, the second edition of the Compendium was updated to reflect the Office’s understanding that human authorship is required by the law. See U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 202.02(b) (2d ed. 1984) (“Compendium (Second)”) (“The term ‘authorship’ implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.”), available at https://www.copyright.gov/history/comp/compendium-two.pdf. The current Compendium retains this requirement and articulates its application in multiple circumstances where non-human expression raises unique challenges. See Compendium (Third) §§ 709.1 (automated computer translations); 803.6(B) (derivative sound recordings made by purely mechanical processes); 805.4(C) & 806.4(C) (human performance required for choreography and pantomimes); 808.8(E) (human selection of color in colorized motion pictures); 906.8 (machine produced expression in visual arts works, such as linoleum flooring); 909.3(B) (x-rays and other medical imaging); 1006.1(A) (hypertext markup language if created by a human being “rather than a website design program”). Although no Compendium section explicitly addresses artificial intelligence, the Board concludes that Office policy and practice makes human authorship a prerequisite for copyright protection.
The Office’s position is supported by a recent report from the U.S. Patent and Trademark Office (“USPTO”) addressing intellectual property issues raised by AI. USPTO sought public comment on whether “a work produced by an AI algorithm or process, without the involvement of a natural person … qualif[ies] as a work of authorship” under the Copyright Act. U.S. Patent and Trademark Office, Public Views on Artificial Intelligence and Intellectual Property Policy at 19 (2020), available at https://www.uspto.gov/sites/default/files/documents/USPTO_AI-Report_2020-10-07.pdf. In its summary of responses, USPTO noted that “the vast majority of commenters acknowledged that existing law does not permit a non-human to be an author [and] this should remain the law.” Id. at 20–21. The Board agrees.
Thaler’s secondary argument, that artificial intelligence can be an author under copyright law because the work made for hire doctrine allows for “non-human, artificial persons such as companies” to be authors, is similarly unavailing. See Second Request at 3–4. First, the Work is clearly not a work made for hire as defined in the Copyright Act. A work made for hire must be either (A) prepared by “an employee” or (B) by one or more “parties” who “expressly agree in a written instrument” that the work is for-hire. 17 U.S.C. § 101 (definition of “work made for hire”). In both cases, the work is created as the result of a binding legal contract—an employment agreement or a work-for-hire agreement. The “Creativity Machine” cannot enter
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