DOJ Recommends Supreme Court Reject AI Copyright Case

The United States Department of Justice (DOJ) has urged the Supreme Court to reject a petition from Stephen Thaler seeking copyright protection for a work created by his artificial intelligence (AI) system. The DOJ’s argument supports the U.S. Court of Appeals for the District of Columbia Circuit’s decision to uphold the United States Copyright Office’s denial of registration for an image generated autonomously by Thaler’s AI.

The Disputed Work and Initial Rejection

The work in question, titled “A Recent Entrance to Paradise,” was generated by Thaler’s Creativity Machine AI system. Thaler initially identified the AI system as the author in his application to the Copyright Office. However, the office denied the application, stating that a human being was required for creation. This decision was affirmed through multiple levels of review, with the agency’s Review Board concluding that the work was autonomously created without human creative contribution.

The DOJ’s Argument: Human Authorship Required

In a brief submitted by Solicitor General D. John Sauer, the DOJ argued that the court of appeals’ decision is correct and consistent with existing legal precedent. The government’s central argument is that the Copyright Act consistently presupposes a human creator, despite not explicitly defining “author.” The DOJ pointed to statutory provisions that indicate copyright ownership, duration, and termination interests are all predicated on human involvement, as machines cannot own property or have lives.

Work-Made-For-Hire Doctrine and AI

The DOJ also addressed Thaler’s argument that the work could be considered “work made for hire.” The brief clarified that this doctrine requires an employment relationship or written agreement, conditions that a nonhuman entity like the Creativity Machine cannot fulfill. While corporations can be recognized as authors under this provision, the term “author” is not extended to non-human entities.

Thaler’s Petition and Amicus Briefs

Thaler’s petition for a writ of certiorari, filed last October, contended that denying copyright to AI-generated works could jeopardize copyright protection for works created with technological assistance, arguing that originality, not humanity, is the key requirement for copyright. Several amicus briefs were submitted to the Court, including one from academics led by Professor Shlomit Yanisky-Ravid and another from Phyllis Schlafly Eagles and the Eagle Forum Education & Legal Defense Fund.

Narrow Scope and Prior Precedent

The DOJ’s brief emphasized that the case is narrow and does not address broader questions about copyright for works created with AI assistance. The Copyright Office considers the extent of human creative control when AI is used in the creative process. In this specific case, Thaler disavowed any participation or creative control over the work. The DOJ cited Burrow-Giles Lithographic Co. v. Sarony, an 1884 case, to support its position, noting that copyright requires intellectual invention by a human.

Previous Supreme Court Action and Conclusion

The D.C. Circuit had affirmed the district court’s summary judgment in favor of the government, stating that a work must be authored in the first instance by a human being. Thaler previously sought Supreme Court review on a similar question regarding AI as an “inventor” on a patent application, but the Court denied that petition in 2023. The DOJ concluded that the court of appeals correctly resolved the narrow question presented and that further review is not warranted.

Rose Esfandiari is an aspiring J.D. candidate with a strong interest in intellectual property, technology, and commercial litigation. She holds a Bachelor’s degree in Political Science and Business Law from […see more]