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All content by Kyle E. Mitchell, who is not your lawyer.

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Exactly the Wrong AI Copyrightability CaseCreativity Machine guy assumed away the debate and lost

Friday’s trial-court decision in Thaler v. Perlmutter, case 22-1564 in the DC district court, epitomizes the sad fact that just the wrong situation can make bad headlines easy, well before the real work in a legal debate.

I’m sure there will be links like “Court Rules AI Art Can’t Be Copyrighted” aplenty. They will be wrong. The court didn’t rule that AI art can’t be copyrighted. It ruled that copyright requires human authorship, surprising approximately zero copyright lawyers…or people who have read the Wikipedia page.

Stephen Thaler tried to register copyright in an image purportedly output by his “Creativity Machine”, which he claims works entirely on its own. The Copyright Office predictably rejected his application, saying only creative works authored by people can be registered. Thaler sued, and the court agreed with the Copyright Office. No copyright for Mr. Machine.

The reason the click mongers can write headlines about “AI” is that Thaler insisted, and therefore the court accepted, that his particular “AI” was fully autonomous. That wasn’t argued, but assumed. The assumption limited the legal question involved not to whether AI art in general can be copyrighted, but whether human creativity’s required for copyright. The answer’s been clear a long time.

Thaler’s stance put him in with failed plaintiffs of the past who insisted that gods, spirits, or unattributed voices communicated works they transcribed, and therefore got no copyrights. It put him in with the handlers in the “monkey selfie” case. It put him away from the big, old, obviously relevant Supreme Court decision allowing copyrights for photographs, even though then-newfangled cameras did so much work an artist would have had to do before. The decision against Thaler cites all these cases.

The court says:

Copyright has never stretched so far…as to protect works generated by new forms of technology operating absent any guiding human hand, as plaintiff urges here.

I might argue what Thaler,the plaintiff, didn’t: that his guiding human hands were all over creating the machine, invoking it, and choosing what output to copyright. For other works, like Zarya of the Dawn, we’ve seen arguments to prompt engineering, iterative modification, selection-curation, and so on. We’ve seen analogies to other technologies and production processes. But those weren’t part of Thaler’s case, because Thaler insisted they shouldn’t be.

This isn’t a case about copyright in AI art. It’s a case about copyright when you assume, by article of faith, that an AI system’s like a god or a monkey.

If it does art but is not one of us, and none of us was involved with its process creatively, you can’t apply for copyrights on its work. Those ifs are the issue. The judge in Thaler’s case didn’t get to go near them. The judge who finally does will need more time than this case took.

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