Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`Civil Action No. 22-1564 (BAH)
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`Judge Beryl A. Howell
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`STEPHEN THALER,
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`Plaintiff,
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`v.
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`SHIRA PERLMUTTER, Register of
`Copyrights and Director of the United States
`Copyright Office, et al.
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`Defendants.
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`
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`MEMORANDUM OPINION
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`Plaintiff Stephen Thaler owns a computer system he calls the “Creativity Machine,”
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`which he claims generated a piece of visual art of its own accord. He sought to register the work
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`for a copyright, listing the computer system as the author and explaining that the copyright
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`should transfer to him as the owner of the machine. The Copyright Office denied the application
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`on the grounds that the work lacked human authorship, a prerequisite for a valid copyright to
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`issue, in the view of the Register of Copyrights. Plaintiff challenged that denial, culminating in
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`this lawsuit against the United States Copyright Office and Shira Perlmutter, in her official
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`capacity as the Register of Copyrights and the Director of the United States Copyright Office
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`(“defendants”). Both parties have now moved for summary judgment, which motions present
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`the sole issue of whether a work generated entirely by an artificial system absent human
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`involvement should be eligible for copyright. See Pl.’s Mot. Summ. J. (Pl.’s Mot.”), ECF No.
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`16; Defs.’ Cross-Mot. Summ. J. (“Defs.’ Mot.”), ECF No. 17. For the reasons explained below,
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`defendants are correct that human authorship is an essential part of a valid copyright claim, and
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 2 of 15
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`therefore plaintiff’s pending motion for summary judgment is denied and defendants’ pending
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`cross-motion for summary judgment is granted.
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`I.
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`BACKGROUND
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`Plaintiff develops and owns computer programs he describes as having “artificial
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`intelligence” (“AI”) capable of generating original pieces of visual art, akin to the output of a
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`human artist. See Pl.’s Mem. Supp. Mot. Summ. J. (“Pl.’s Mem.”) at 13, ECF No. 16. One such
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`AI system—the so-called “Creativity Machine”—produced the work at issue here, titled “A
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`Recent Entrance to Paradise:”
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`Admin. Record (“AR”), Ex. H, Copyright Review Board Refusal Letter Dated February 14, 2022
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`“(Final Refusal Letter”) at 1, ECF No. 13-8.
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 3 of 15
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`After its creation, plaintiff attempted to register this work with the Copyright Office. In
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`his application, he identified the author as the Creativity Machine, and explained the work had
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`been “autonomously created by a computer algorithm running on a machine,” but that plaintiff
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`sought to claim the copyright of the “computer-generated work” himself “as a work-for-hire to
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`the owner of the Creativity Machine.” Id., Ex. B, Copyright Application (“Application”) at 1,
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`ECF No. 13-2; see also id. at 2 (listing “Author” as “Creativity Machine,” the work as “[c]reated
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`autonomously by machine,” and the “Copyright Claimant” as “Steven [sic] Thaler” with the
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`transfer statement, “Ownership of the machine”). The Copyright Office denied the application
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`on the basis that the work “lack[ed] the human authorship necessary to support a copyright
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`claim,” noting that copyright law only extends to works created by human beings. Id., Ex. D,
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`Copyright Office Refusal Letter Dated August 12, 2019 (“First Refusal Letter”) at 1, ECF No.
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`13-4.
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`Plaintiff requested reconsideration of his application, confirming that the work “was
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`autonomously generated by an AI” and “lack[ed] traditional human authorship,” but contesting
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`the Copyright Office’s human authorship requirement and urging that AI should be
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`“acknowledge[d] . . . as an author where it otherwise meets authorship criteria, with any
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`copyright ownership vesting in the AI’s owner.” Id., Ex. E, First Request for Reconsideration at
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`2, ECF No. 13-5. Again, the Copyright Office refused to register the work, reiterating its
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`original rationale that “[b]ecause copyright law is limited to ‘original intellectual conceptions of
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`the author,’ the Office will refuse to register a claim if it determines that a human being did not
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`create the work.” Id., Ex. F, Copyright Office Refusal Letter Dated March 30, 2020 (“Second
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`Refusal Letter”) at 1, ECF No. 13-6 (quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S.
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`53, 58 (1884) and citing 17 U.S.C. § 102(a); U.S. Copyright Office, Compendium of U.S.
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`Copyright Office Practices § 306 (3d ed. 2017)). Plaintiff made a second request for
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`reconsideration along the same lines as his first, see id., Ex. G, Second Request for
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`Reconsideration at 2, ECF No. 13-7, and the Copyright Office Review Board affirmed the denial
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`of registration, agreeing that copyright protection does not extend to the creations of non-human
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`entities, Final Refusal Letter at 4, 7.
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`Plaintiff timely challenged that decision in this Court, claiming that defendants’ denial of
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`copyright registration to the work titled “A Recent Entrance to Paradise,” was “arbitrary,
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`capricious, an abuse of discretion and not in accordance with the law, unsupported by substantial
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`evidence, and in excess of Defendants’ statutory authority,” in violation of the Administrative
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`Procedure Act (“APA”), 5 U.S.C. § 706(2). See Compl. ¶¶ 62–66, ECF No. 1. The parties agree
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`upon the key facts narrated above to focus, in the pending cross-motions for summary judgment,
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`on the sole legal issue of whether a work autonomously generated by an AI system is
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`copyrightable. See Pl.’s Mem. at 13; Defs.’ Mem. Supp. Cross-Mot. Summ. J. & Opp’n Pl.’s
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`Mot. Summ. J. (“Defs.’ Opp’n”) at 7, ECF No. 17. Those motions are now ripe for resolution.
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`See Defs.’ Reply Supp. Cross-Mot. Summ. J. (“Defs.’ Reply”), ECF No. 21.
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`II.
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`LEGAL STANDARD
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`A.
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`Administrative Procedure Act
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`The APA provides for judicial review of any “final agency action for which there is no
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`other adequate remedy in a court,” 5 U.S.C. § 704, and “instructs a reviewing court to set aside
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`agency action found to be ‘arbitrary, capricious, an abuse of discretion, or otherwise not in
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`accordance with law,’” Cigar Ass’n of Am. v. FDA, 964 F.3d 56, 61 (D.C. Cir. 2020) (quoting 5
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`U.S.C. § 706(2)(A)). This standard “‘requires agencies to engage in reasoned decisionmaking,’
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`and . . . to reasonably explain to reviewing courts the bases for the actions they take and the
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`conclusions they reach.” Brotherhood of Locomotive Eng’rs & Trainmen v. Fed. R.R. Admin.,
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 5 of 15
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`972 F.3d 83, 115 (D.C. Cir. 2020) (quoting Dep’t of Homeland Sec. v. Regents of Univ. of Cal.
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`(“Regents”), 140 S. Ct. 1891, 1905 (2020)). Judicial review of agency action is limited to “the
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`grounds that the agency invoked when it took the action,” Regents, 140 S. Ct. at 1907 (quoting
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`Michigan v. EPA, 576 U.S. 743, 758 (2015)), and the agency, too, “must defend its actions based
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`on the reasons it gave when it acted,” id. at 1909.
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`B.
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`Summary Judgment
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`Pursuant to Federal Rule of Civil Procedure 56, “[a] party is entitled to summary
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`judgment only if there is no genuine issue of material fact and judgment in the movant’s favor is
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`proper as a matter of law.” Soundboard Ass’n v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018)
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`(quoting Ctr. for Auto Safety v. Nat'l Highway Traffic Safety Admin., 452 F.3d 798, 805 (D.C.
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`Cir. 2006)); see also Fed. R. Civ. P. 56(a). In APA cases such as this one, involving cross-
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`motions for summary judgment, “the district judge sits as an appellate tribunal. The ‘entire case’
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`on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083–84
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`(D.C. Cir. 2001) (footnote omitted) (collecting cases). Thus, a court need not and ought not
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`engage in fact finding, since “[g]enerally speaking, district courts reviewing agency action under
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`the APA’s arbitrary and capricious standard do not resolve factual issues, but operate instead as
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`appellate courts resolving legal questions.” James Madison Ltd. by Hecht v. Ludwig, 82 F.3d
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`1085, 1096 (D.C. Cir. 1996); see also Lacson v. U.S. Dep’t of Homeland Sec., 726 F.3d 170, 171
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`(D.C. Cir. 2013) (noting, in an APA case, that “determining the facts is generally the agency’s
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`responsibility, not [the court’s]”). Judicial review, when available, is typically limited to the
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`administrative record, since “[i]t is black-letter administrative law that in an [APA] case, a
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`reviewing court should have before it neither more nor less information than did the agency
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`when it made its decision.” CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir. 2014) (internal
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`quotation marks and citation omitted).
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`III. DISCUSSION
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`Under the Copyright Act of 1976, copyright protection attaches “immediately” upon the
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`creation of “original works of authorship fixed in any tangible medium of expression,” provided
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`those works meet certain requirements. Fourth Estate v. Public Benefit Corporation v. Wall-
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`Street.com, LLC, 139 S. Ct. 881, 887 (2019); 17 U.S.C. § 102(a). A copyright claimant can also
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`register the work with the Register of Copyrights. Upon concluding that the work is indeed
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`copyrightable, the Register will issue a certificate of registration, which, among other
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`advantages, allows the claimant to pursue infringement claims in court. 17 U.S.C. §§ 410(a),
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`411(a); Unicolors v. H&M Hennes & Mauritz, L.P., 142 S. Ct. 941, 944–45 (2022). A valid
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`copyright exists upon a qualifying work’s creation and “apart” from registration, however; a
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`certificate of registration merely confirms that the copyright has existed all along. See Fourth
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`Estate, 139 S. Ct. at 887. Conversely, if the Register denies an application for registration for
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`lack of copyrightable subject matter—and did not err in doing so—then the work at issue was
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`never subject to copyright protection at all.
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`In considering plaintiff’s copyright registration application as to “A Recent Entrance to
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`Paradise,” the Register concluded that “this particular work will not support a claim to
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`copyright” because the work lacked human authorship and thus no copyright existed in the first
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`instance. First Refusal Letter at 1; see also Final Refusal Letter at 3 (providing the same
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`rationale in the final reconsideration decision). By design in plaintiff’s framing of the
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`registration application, then, the single legal question presented here is whether a work
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`generated autonomously by a computer falls under the protection of copyright law upon its
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`creation.
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`Plaintiff attempts to complicate the issues presented by devoting a substantial portion of
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`his briefing to the viability of various legal theories under which a copyright in the computer’s
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`work would transfer to him, as the computer’s owner; for example, by operation of common law
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`property principles or the work-for-hire doctrine. See Pl.’s Mem. at 31–37; Pl.’s Reply Supp.
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`Mot. Summ. J. & Opp’n Def.’s Cross-Mot. Summ. J. (“Pl.’s Opp’n”) at 11–15, ECF No. 18.
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`These arguments concern to whom a valid copyright should have been registered, and in so doing
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`put the cart before the horse.1 By denying registration, the Register concluded that no valid
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`copyright had ever existed in a work generated absent human involvement, leaving nothing at all
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`to register and thus no question as to whom that registration belonged.
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`The only question properly presented, then, is whether the Register acted arbitrarily or
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`capriciously or otherwise in violation of the APA in reaching that conclusion. The Register did
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`not err in denying the copyright registration application presented by plaintiff. United States
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`copyright law protects only works of human creation.
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`Plaintiff correctly observes that throughout its long history, copyright law has proven
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`malleable enough to cover works created with or involving technologies developed long after
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`traditional media of writings memorialized on paper. See, e.g., Goldstein v. California, 412 U.S.
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`546, 561 (1973) (explaining that the constitutional scope of Congress’s power to “protect the
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`‘Writings’ of ‘Authors’” is “broad,” such that “writings” is not “limited to script or printed
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`material,” but rather encompasses “any physical rendering of the fruits of creative intellectual or
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`aesthetic labor”); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884) (upholding
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`1
`In pursuing these arguments, plaintiff elaborates on his development, use, ownership, and prompting of the
`AI generating software in the so-called “Creativity Machine,” implying a level of human involvement in this case
`entirely absent in the administrative record. As detailed, supra, in Part I, plaintiff consistently represented to the
`Register that the AI system generated the work “autonomously” and that he played no role in its creation, see
`Application at 2, and judicial review of the Register’s final decision must be based on those same facts.
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 8 of 15
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`the constitutionality of an amendment to the Copyright Act to cover photographs). In fact, that
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`malleability is explicitly baked into the modern incarnation of the Copyright Act, which provides
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`that copyright attaches to “original works of authorship fixed in any tangible medium of
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`expression, now known or later developed.” 17 U.S.C. § 102(a) (emphasis added). Copyright is
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`designed to adapt with the times. Underlying that adaptability, however, has been a consistent
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`understanding that human creativity is the sine qua non at the core of copyrightability, even as
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`that human creativity is channeled through new tools or into new media. In Sarony, for example,
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`the Supreme Court reasoned that photographs amounted to copyrightable creations of “authors,”
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`despite issuing from a mechanical device that merely reproduced an image of what is in front of
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`the device, because the photographic result nonetheless “represent[ed]” the “original intellectual
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`conceptions of the author.” Sarony, 111 U.S. at 59. A camera may generate only a “mechanical
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`reproduction” of a scene, but does so only after the photographer develops a “mental conception”
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`of the photograph, which is given its final form by that photographer’s decisions like “posing the
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`[subject] in front of the camera, selecting and arranging the costume, draperies, and other various
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`accessories in said photograph, arranging the subject so as to present graceful outlines, arranging
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`and disposing the light and shade, suggesting and evoking the desired expression, and from such
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`disposition, arrangement, or representation” crafting the overall image. Id. at 59–60. Human
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`involvement in, and ultimate creative control over, the work at issue was key to the conclusion
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`that the new type of work fell within the bounds of copyright.
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`Copyright has never stretched so far, however, as to protect works generated by new
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`forms of technology operating absent any guiding human hand, as plaintiff urges here. Human
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`authorship is a bedrock requirement of copyright.
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`That principle follows from the plain text of the Copyright Act. The current incarnation
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`of the copyright law, the Copyright Act of 1976, provides copyright protection to “original works
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`of authorship fixed in any tangible medium of expression, now known or later developed, from
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`which they can be perceived, reproduced, or otherwise communicated, either directly or with the
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`aid of a machine or device.” 17 U.S.C. § 102(a). The “fixing” of the work in the tangible
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`medium must be done “by or under the authority of the author.” Id. § 101. In order to be
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`eligible for copyright, then, a work must have an “author.”
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`To be sure, as plaintiff points out, the critical word “author” is not defined in the
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`Copyright Act. See Pl.’s Mem. at 24. “Author,” in its relevant sense, means “one that is the
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`source of some form of intellectual or creative work,” “[t]he creator of an artistic work; a painter,
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`photographer, filmmaker, etc.” Author, MERRIAM-WEBSTER UNABRIDGED DICTIONARY,
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`https://unabridged.merriam-webster.com/unabridged/author (last visited Aug. 18, 2023); Author,
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`OXFORD ENGLISH DICTIONARY, https://www.oed.com/dictionary/author_n (last visited Aug. 10,
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`2023). By its plain text, the 1976 Act thus requires a copyrightable work to have an originator
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`with the capacity for intellectual, creative, or artistic labor. Must that originator be a human
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`being to claim copyright protection? The answer is yes.2
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`The 1976 Act’s “authorship” requirement as presumptively being human rests on
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`centuries of settled understanding. The Constitution enables the enactment of copyright and
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`patent law by granting Congress the authority to “promote the progress of science and useful
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`arts, by securing for limited times to authors and inventors the exclusive right to their respective
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`2
`The issue of whether non-human sentient beings may be covered by “person” in the Copyright Act is only
`“fun conjecture for academics,” Justin Hughes, Restating Copyright Law’s Originality Requirement, 44 COLUMBIA
`J. L. & ARTS 383, 408–09 (2021), though useful in illuminating the purposes and limits of copyright protection as AI
`is increasingly employed. Nonetheless, delving into this debate is an unnecessary detour since “[t]he day sentient
`refugees from some intergalactic war arrive on Earth and are granted asylum in Iceland, copyright law will be the
`least of our problems.” Id. at 408.
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`writings and discoveries.” U.S. Const. art. 1, cl. 8. As James Madison explained, “[t]he utility
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`of this power will scarcely be questioned,” for “[t]he public good fully coincides in both cases
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`[of copyright and patent] with the claims of individuals.” THE FEDERALIST NO. 43 (James
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`Madison). At the founding, both copyright and patent were conceived of as forms of property
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`that the government was established to protect, and it was understood that recognizing exclusive
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`rights in that property would further the public good by incentivizing individuals to create and
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`invent. The act of human creation—and how to best encourage human individuals to engage in
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`that creation, and thereby promote science and the useful arts—was thus central to American
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`copyright from its very inception. Non-human actors need no incentivization with the promise
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`of exclusive rights under United States law, and copyright was therefore not designed to reach
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`them.
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`The understanding that “authorship” is synonymous with human creation has persisted
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`even as the copyright law has otherwise evolved. The immediate precursor to the modern
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`copyright law—the Copyright Act of 1909—explicitly provided that only a “person” could
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`“secure copyright for his work” under the Act. Act of Mar. 4, 1909, ch. 320, §§ 9, 10, 35 Stat.
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`1075, 1077. Copyright under the 1909 Act was thus unambiguously limited to the works of
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`human creators. There is absolutely no indication that Congress intended to effect any change to
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`this longstanding requirement with the modern incarnation of the copyright law. To the contrary,
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`the relevant congressional report indicates that in enacting the 1976 Act, Congress intended to
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`incorporate the “original work of authorship” standard “without change” from the previous 1909
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`Act. See H.R. REP. NO. 94-1476, at 51 (1976).
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`The human authorship requirement has also been consistently recognized by the Supreme
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`Court when called upon to interpret the copyright law. As already noted, in Sarony, the Court’s
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 11 of 15
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`recognition of the copyrightability of a photograph rested on the fact that the human creator, not
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`the camera, conceived of and designed the image and then used the camera to capture the image.
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`See Sarony, 111 U.S. at 60. The photograph was “the product of [the photographer’s]
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`intellectual invention,” and given “the nature of authorship,” was deemed “an original work of
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`art . . . of which [the photographer] is the author.” Id. at 60–61. Similarly, in Mazer v. Stein, the
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`Court delineated a prerequisite for copyrightability to be that a work “must be original, that is,
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`the author’s tangible expression of his ideas.” 347 U.S. 201, 214 (1954). Goldstein v.
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`California, too, defines “author” as “an ‘originator,’ ‘he to whom anything owes its origin,’” 412
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`U.S. at 561 (quoting Sarony, 111 U.S. at 58). In all these cases, authorship centers on acts of
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`human creativity.
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`Accordingly, courts have uniformly declined to recognize copyright in works created
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`absent any human involvement, even when, for example, the claimed author was divine. The
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`Ninth Circuit, when confronted with a book “claimed to embody the words of celestial beings
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`rather than human beings,” concluded that “some element of human creativity must have
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`occurred in order for the Book to be copyrightable,” for “it is not creations of divine beings that
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`the copyright laws were intended to protect.” Urantia Found. v. Kristen Maaherra, 114 F.3d
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`955, 958–59 (9th Cir. 1997) (finding that because the “members of the Contact Commission
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`chose and formulated the specific questions asked” of the celestial beings, and then “select[ed]
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`and arrange[d]” the resultant “revelations,” the Urantia Book was “at least partially the product
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`of human creativity” and thus protected by copyright); see also Penguin Books U.S.A., Inc. v.
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`New Christian Church of Full Endeavor, 96-cv-4126 (RWS), 2000 WL 1028634, at *2, 10–11
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`(S.D.N.Y. July 25, 2000) (finding a valid copyright where a woman had “filled nearly thirty
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`stenographic notebooks with words she believed were dictated to her” by a “‘Voice’ which
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 12 of 15
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`would speak to her whenever she was prepared to listen,” and who had worked with two human
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`co-collaborators to revise and edit those notes into a book, a process which involved enough
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`creativity to support human authorship); Oliver v. St. Germain Found., 41 F. Supp. 296, 297, 299
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`(S.D. Cal. 1941) (finding no copyright infringement where plaintiff claimed to have transcribed
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`“letters” dictated to him by a spirit named Phylos the Thibetan, and defendant copied the same
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`“spiritual world messages for recordation and use by the living” but was not charged with
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`infringing plaintiff’s “style or arrangement” of those messages). Similarly, in Kelley v. Chicago
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`Park District, the Seventh Circuit refused to “recognize[] copyright” in a cultivated garden, as
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`doing so would “press[] too hard on the[] basic principle[]” that “[a]uthors of copyrightable
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`works must be human.” 635 F.3d 290, 304–06 (7th Cir. 2011). The garden “ow[ed] [its] form to
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`the forces of nature,” even if a human had originated the plan for the “initial arrangement of the
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`plants,” and as such lay outside the bounds of copyright. Id. at 304. Finally, in Naruto v. Slater,
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`the Ninth Circuit held that a crested macaque could not sue under the Copyright Act for the
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`alleged infringement of photographs this monkey had taken of himself, for “all animals, since
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`they are not human” lacked statutory standing under the Act. 888 F.3d 418, 420 (9th Cir. 2018).
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`While resolving the case on standing grounds, rather than the copyrightability of the monkey’s
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`work, the Naruto Court nonetheless had to consider whom the Copyright Act was designed to
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`protect and, as with those courts confronted with the nature of authorship, concluded that only
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`humans had standing, explaining that the terms used to describe who has rights under the Act,
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`like “‘children,’ ‘grandchildren,’ ‘legitimate,’ ‘widow,’ and ‘widower[,]’ all imply humanity and
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`necessarily exclude animals.” Id. at 426. Plaintiff can point to no case in which a court has
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`recognized copyright in a work originating with a non-human.
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`Undoubtedly, we are approaching new frontiers in copyright as artists put AI in their
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`toolbox to be used in the generation of new visual and other artistic works. The increased
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`attenuation of human creativity from the actual generation of the final work will prompt
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`challenging questions regarding how much human input is necessary to qualify the user of an AI
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`system as an “author” of a generated work, the scope of the protection obtained over the resultant
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`image, how to assess the originality of AI-generated works where the systems may have been
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`trained on unknown pre-existing works, how copyright might best be used to incentivize creative
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`works involving AI, and more. See, e.g., Letter from Senators Thom Tillis and Chris Coons to
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`Kathi Vidal, Under Secretary of Commerce for Intellectual Property and Director of the U.S.
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`Patent and Trademark Office, and Shira Perlmutter, Register of Copyrights and Director of the
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`U.S. Copyright Office (Oct. 27, 2022), https://www.copyright.gov/laws/hearings/Letter-to-
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`USPTO-USCO-on-National-Commission-on-AI-1.pdf (requesting that the United States Patent
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`and Trademark Office and the United States Copyright Office “jointly establish a national
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`commission on AI” to assess, among other topics, how intellectual property law may best
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`“incentivize future AI related innovations and creations”).
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`This case, however, is not nearly so complex. While plaintiff attempts to transform the
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`issue presented here, by asserting new facts that he “provided instructions and directed his AI to
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`create the Work,” that “the AI is entirely controlled by [him],” and that “the AI only operates at
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`[his] direction,” Pl.’s Mem. at 36–37—implying that he played a controlling role in generating
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`the work—these statements directly contradict the administrative record. Judicial review of a
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`final agency action under the APA is limited to the administrative record, because “[i]t is black-
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`letter administrative law that in an [APA] case, a reviewing court should have before it neither
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`more nor less information than did the agency when it made its decision.” CTS Corp., 759 F.3d
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 14 of 15
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`at 64 (internal quotation marks and citation omitted). Here, plaintiff informed the Register that
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`the work was “[c]reated autonomously by machine,” and that his claim to the copyright was only
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`based on the fact of his “[o]wnership of the machine.” Application at 2. The Register therefore
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`made her decision based on the fact the application presented that plaintiff played no role in
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`using the AI to generate the work, which plaintiff never attempted to correct. See First Request
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`for Reconsideration at 2 (“It is correct that the present submission lacks traditional human
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`authorship—it was autonomously generated by an AI.”); Second Request for Reconsideration at
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`2 (same). Plaintiff’s effort to update and modify the facts for judicial review on an APA claim is
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`too late. On the record designed by plaintiff from the outset of his application for copyright
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`registration, this case presents only the question of whether a work generated autonomously by a
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`computer system is eligible for copyright. In the absence of any human involvement in the
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`creation of the work, the clear and straightforward answer is the one given by the Register: No.
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`Given that the work at issue did not give rise to a valid copyright upon its creation,
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`plaintiff’s myriad theories for how ownership of such a copyright could have passed to him need
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`not be further addressed. Common law doctrines of property transfer cannot be implicated
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`where no property right exists to transfer in the first instance. The work-for-hire provisions of
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`the Copyright Act, too, presuppose that an interest exists to be claimed. See 17 U.S.C § 201(b)
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`(“In the case of a work made for hire, the employer . . . owns all of the rights comprised in the
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`copyright.”).3 Here, the image autonomously generated by plaintiff’s computer system was
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`3
`In any event, plaintiff’s attempts to cast the work as a work-for-hire must fail as both definitions of a “work
`made for hire” available under the Copyright Act require that the individual who prepares the work is a human
`being. The first definition provides that “a ‘work made for hire’ is . . . a work prepared by an employee within the
`scope of his or her employment,” while the second qualifies certain eligible works “if the parties expressly agree in
`a written instrument signed by them that the work shall be considered a work made for hire.” 17 U.S.C. § 101
`(emphasis added). The use of personal pronouns in the first definition clearly contemplates only human beings as
`eligible “employees,” while the second necessitates a meeting of the minds and exchange of signatures in a valid
`contract not possible with a non-human entity.
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`Case 1:22-cv-01564-BAH Document 24 Filed 08/18/23 Page 15 of 15
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`never eligible for copyright, so none of the doctrines invoked by plaintiff conjure up a copyright
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`over which ownership may be claimed.
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`IV. CONCLUSION
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`For the foregoing reasons, defendants are correct that the Copyright Office acted properly
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`in denying copyright registration for a work created absent any human involvement. Plaintiff’s
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`motion for summary judgment is therefore denied and defendants’ cross-motion for summary
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`judgment is granted.
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`An Order consistent with this Memorandum Opinion will be entered contemporaneously.
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`Date: August 18, 2023
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`___________________________
`BERYL A. HOWELL
`United States District Judge
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