Image: Thaler

The U.S. Copyright Office (“USCO”) and its director Shira Perlmutter are looking to escape the lawsuit waged against them after they refused to register an artificial intelligence “(AI”)-generated artwork. On the heels of DABUS inventor Stephen Thaler lodging an Administrative Procedure Act (“APA”) case against the defendants in June 2022, seeking an order from the court to compel them to set aside their refusal to register the two-dimensional AI-generated work, and a subsequent motion for summary judgment, Perlmutter and the USCO have lodged a response and a summary judgment motion of their own, arguing that the USCO properly denied Thaler’s application and that there are no material issues of fact in dispute. 

Setting the stage in their filing, Perlmutter and the USCO assert that this case “turns on a single question: Did the [USCO] act reasonably and consistently with the law when it refused to extend copyright protection to a visual work” – 2D AI-generated artwork, entitled, “A Recent Entrance to Paradise” – that “the plaintiff represented was created without any human involvement? The answer is yes.”  

In terms of the standard for Thaler’s APA claim, Perlmutter and the USCO assert that courts may “hold unlawful and set aside agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” They argue that Thaler has “failed to meet his burden here,” as the USCO applied “longstanding legal criteria,” considered and rejected the arguments made by Thaler, and “explained clearly how it applied the law to” Thaler’s application.

In rejecting the application, the USCO “confirmed that copyright protection does not extend to non-human authors,” the defendants argue, noting that the Copyright Office made its determination “based on the language of the Copyright Act, Supreme Court precedent [including in Burrow-Giles Lithographic Co. v. SaronyMazer v. Stein, and Goldstein v. California], and federal court decisions refusing to extend copyright protection to non-human authorship.” 

Pointing to the Compendium, which the USCO uses when reviewing copyright registration applications (including with regard to the requirements for copyrightability), Perlmutter and the USCO state that the manual “contains several sections addressing the human authorship requirement,” specifying that “the Office will refuse to register a claim if it determines that a human being did not create the work.” The Compendium provides numerous examples of works that lack the human authorship requirement necessary for copyrightability, the defendants content, “including ‘works produced by nature, animals, or plants.’” 

“Most notably,” they say that the Compendium specifies that the USCO “will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.” 

The Office Correctly Refused Plaintiff’s Application to Register the Work – In particular, Perlmutter and the USCO contend that the USCO properly determined that “copyright law does not protect non-human creators was a sound and reasoned interpretation of the applicable law.”

Contrary to Thaler’s argument, they assert that “there is no support in the Copyright Act for his assertion that copyright extends to works created solely by machines.” In fact, Perlmutter and the USCO argue that Thaler “misconstrues” provisions of the Copyright Act, namely, in claiming that the Act “‘explicitly accommodates non-human authors’ by allowing copyright registration for anonymous works, pseudonymous works, or works made for hire.” The opposite is true, per Perlmutter and the USCO, with the Act “assum[ing] that authors are human.” Against that background, they contend that “Congress created ‘special provisions’ to address those circumstances where a work’s term cannot be computed by using an author’s life because the human author is not identified.” 

“Nothing about Congress’s treatment of the term of protection for anonymous and pseudonymous works supports Plaintiff’s argument that Congress intended the Act to protect non-human creations,” they argue. 

The Creativity of the Work’s Visual Elements is Irrelevant – Pushing back against Thaler’s claim that the work is “adequately creative” because it “contains visual elements in a novel way,” Perlmutter and the USCO state that Thaler “misses the point.” While creativity and originality are pre-requisites to copyright protection, they are “not sufficient for protection,” the defendants claim, stating that “it is only the creativity and originality of ‘authors’ – humans – that are eligible for copyright.” In this case, they say that “the arrangement of visual elements in the work is not determinative, [and] rather, the work’s defect is that its ‘author’ is not human and, therefore, it cannot be a ‘work of authorship’ under § 102(a).” 

Plaintiff Cannot Supplement the Administrative Record Regarding the Work’s Creation – Additionally, Perlmutter and the USCO take issue with Thaler’s attempt to claim that his statement, which he “made for the first time in his motion [for summary judgment], that he ‘provided instructions and directed his AI to create the work,’ that ‘the AI is entirely controlled by Dr. Thaler,’ or that ‘the AI only operates at Dr. Thaler’s direction.’” The court “should not credit … these unsubstantiated allegations,” they argue, as these statements “were not part of the Administrative Record before the Copyright Office,” and “at no point in [his] copyright application or his two requests for reconsideration did [Thaler] suggest that he had any involvement in or direction of the specific expressive content of the work.” 

Still yet, the defendants argue that “neither common law nor the work-made-for-hire doctrine are a basis for [thaler] to claim authorship of the work” and his policy arguments – including that the USCO “should register copyrights for [machine-generated works] because doing so would further the underlying goals of copyright law, including the constitutional rationale for copyright protection, and because there is no binding authority that prohibits” registration – are “irrelevant and fail to demonstrate that the [USCO’s] decision was arbitrary and capricious.”

With the foregoing in mind, Perlmutter and the USCO contend the Administrative Record shows that the USCO’s refusal to register the work “was soundly and rationally based on settled law, and not arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law.” As such and given that that the relief that Thaler is seeking (namely, that the court order them to “register the Copyright in the artwork entitled ‘A Recent Entrance to Paradise’”) is outside the scope of the APA, they request that the court deny Thaler’s motion for summary judgment and grant theirs. 

The case is Stephen Thaler v. Shira Perlmutter, et al., 1:22-cv-01564 (DDC).