Copyright Denied for Generative AI: Remarks on Thaler v Perlmutter

Abstract

In Thaler v Perlmutter, the United States District Court for the District of Columbia had to decide whether an artwork allegedly produced autonomously by an artificial intelligence (‘AI’) system was copyright subject matter. The Court held that a work must be a result of human authorship to receive copyright protection and therefore upheld the decision of the United States Copyright Office denying the registration of copyright for a piece of AI-generated visual art. The Court reached this conclusion considering the meaning of ‘author’ in the Copyright Act of 1976, the Copyright Clause in the United States Constitution, and prior judicial decisions dealing with non-human authorship.

The Court’s constitutional analysis of the issue implies that the Copyright Act cannot be interpreted to protect AI-generated works and may suggest that Congress is constitutionally precluded from amending it to protect such works. This outcome would be inconsistent with the power of Congress under the Copyright Clause in the United States Constitution. Furthermore, despite the strong role of the economic incentive theory in United States copyright law, its use by the Court against the protection of AI-generated works overlooks the fact that the connection between this theory and human authorship is not exclusive.