On February 14, 2022, the Review Board of the United States Copyright Office issued an opinion letter denying a claimant’s second request for reconsideration to register an Artificial Intelligence artwork piece titled “A Recent Entrance to Paradise” (“Work”).

Steven Thaler filed an application to register a copyright claim in the Work on November 3, 2018.  Thaler identified the author of the work as the “Creativity Machine.”  He explained that the Work “was autonomously created by a computer algorithm running on a machine” and that he sought to register the Work as the owner of the machine.  The U.S. Copyright Office refused to register the claim, finding that it “lacks the human authorship necessary to support a copyright claim.”  Thaler requested that the Office reconsider its refusal, but the Office reached the same result a second time.  The Office stated that it would not “abandon its longstanding interpretation of the Copyright Act, Supreme Court, and lower court judicial precedent that a work meets the legal and formal requirements of copyright protection only if it is created by a human author.”

Thaler then filed a second request for reconsideration, arguing again that the Office should allow copyright registration for machine-generated works because it would “further the underlying goals of copyright law, including the constitutional rationale for copyright protection.”  The Review Board disagreed, stating as follows:

“But copyright law only protects ‘the fruits of intellectual labor’ that ‘are founded in the creative powers of the [human] mind.’ COMPENDIUM (THIRD) § 306 (quoting Trade-Mark Cases, 100 U.S. 82, 94 (1879)); see also COMPENDIUM (THIRD) § 313.2 (the Office will not register works ‘produced by a machine or mere mechanical process’ that operates ‘without any creative input or intervention from a human author’ because, under the statute, ‘a work must be created by a human being’). So Thaler must either provide evidence that the Work is the product of human authorship or convince the Office to depart from a century of copyright jurisprudence. He has done neither.”

The Review Board analyzed Thaler’s constitutional and work-made-for-hire doctrine arguments, but rejected them.  The Board concluded by stating that Thaler “cites to no case law or other precedent that would undermine the Office’s construction of the Copyright Act” and holding that “[b]ecause copyright law as codified in the 1976 Act requires human authorship, the Work cannot be registered.” As such, the human authorship requirement for copyright registration still stands.