District Court says no human--no copyright
Technology for Lawyers
Published: September 15, 2023
The United States District Court for the District of Columbia granted a summary judgment motion to the U.S. Copyright Office that put a court’s imprimatur on the office’s consistent findings that only a human can obtain a copyright.
This case concerned AI art, but the decision should also apply to any kind of creative output.
The case is Thaler v. Perlmutter, No. 1:22-cv-01564 (D.D.C. Aug. 18, 2023).
In it, Steven Thaler tried to copyright an AI-produced picture entitled “A recent Entrance to Paradise.”
The picture shows some railroad tracks disappearing through a tunnel that looks like it’s made of ivy or some kind of greenery, with what looks like purple flowers around the edges.
It is completely AI-generated. It might kind of be in the style of Monet but it is fuzzy and not interesting or dynamic in any way, unlike Monet (especially in person).
The court’s reasoning in the case was divided into four parts.
1. Precedent. No court has ever granted a copyright to a non-human (at least as far as they know).
2. Projecting the position of the Supreme Court. They haven’t had a non-human creative decision per se, but several cases have found creation to be a “human activity.”
3. The Copyright Act’s “plain language.” This is the language that the office has used in these cases.
4. The Progress Clause of the Constitution, which is the intellectual ground of U.S. copyright law, and which is being interpreted to mean that creativity is a strictly human act.
The holding didn’t reach what percentage of human input was necessary for a work to be copyrightable.
Visual art is one thing but a poem or short story or movie script is another.
I’m talking here about how the work itself is generated.
To produce text in an AI input, the person who is asking for a textual result has to put in a textual prompt.
So, even if the text is generated by the AI, there was human input.
A prompt could read, for instance: “generate a four-stanza poem on the topic of fruit punch in the style of Ginsburg.”
Punch in the prompt and get a poem out. Then you take that and edit it a bit and try to copyright it.
That’s what will happen.
There is no indication in this decision, at least, whether or not that would be copyrightable, even though 25% to 50% of it was human-generated or could be argued to be human-generated.
It's coming. Get yer popcorn ready.