Copyright Office Ruling Exposes Artificial Intelligence And NFT Issues – Intellectual Property

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At what point can artificial intelligence be considered a “human”, if any? Who is responsible for the art created by technology? Who owns the art, which is primarily computer-generated? The US Copyright Office has addressed these questions in its latest ruling on artificial intelligence that will affect future art and NFTs.

In short, the Copyright Office has decided not to provide protection if it determines that humans did not create the work. However, a closer look at the rationale behind the copyright application itself and its subsequent refusal reveals a deeper and more complex set of questions that the Copyright Office will have to face in the coming years. ..

U.S. Copyright Office AI Judgment

In 2019, Dr. Steven Thaler, founder and director of Imagination Engines, Inc., sought to copyright a two-dimensional artwork entitled “Recent Entrance to Paradise.” According to Thaler, this work is a “simulated near-death experience,” where algorithms reprocess photos to create hallucinatory images and fictional stories about the afterlife. Importantly, computers aim to complete this work of art with minimal human intervention.

In Thaler’s first copyright application, the author of the artwork is identified as the “Creativity Machine” and Thaler is listed as the claimant with the transfer statement “Ownership of the Machine”. In an application to the Copyright Office, Taller said that the artwork was “autonomously created by a computer algorithm running on a machine” and “let’s register this computer-generated work as a work for hire.” I was saying. ” Owner of the creativity machine. In a letter dated August 12, 2019, a registered specialist at the Copyright Office decided that “there is a lack of human copyright necessary to support the copyright claim” and refused to register the claim. did.

Thaler then demanded that the Copyright Office reconsider the initial refusal to register the artwork, “human copyright requirements are unconstitutional and are not endorsed by either law or case law.” Insisted. The Copyright Office reassessed the claim, and because Thaler “did not provide evidence of sufficient creative input or intervention by human authors in the work,” the artwork “to maintain the copyright claim.” Lacking the necessary human authors. ” The Copyright Office goes one step further, saying, “We will not abandon the long-standing interpretation of copyright law, Supreme Court, and lower court cases that a work meets legal and formal requirements for copyright protection.” Said. Human author. “

Thaler then filed a second request for reconsideration, reasserting that the Copyright Office’s “human copyright” requirement was unconstitutional and not supported by case law. Specifically, in this second request, Thaler argued that the Copyright Office would need to “register” copyright on machine-generated works. Registering “further advances the fundamental goals of copyright law, including the constitutional basis for copyright protection.” In response to a quote from the Copyright Department of Case Law dealing with human copyright, Thaler argued: [computer-generated
works]”, Copyright law has already allowed inhuman entities to become authors under work for hire, and ultimately, the Copyright Department” is now a non-binding judiciary from Guildid Age. ” Depending on your opinion, [computer-generated works] Can be protected. “

In response to Thaler’s second request, the Copyright Office again ruled against Thaler. As before, the three judges have determined that images created with Thaler’s AI do not contain the “human copyright” element required for copyright protection.

So what does this mean for future computer-generated works? To explain this positive question, let’s dig into the past and take a look at Ex Machina in 2014, a work of art in the film.

Ex Machina

In the 2014 movie, Ex Machina, a computer coder named Caleb (Domhnall Gleeson), was invited by Nathan (Oscar Isaac), the CEO inventor of a giant tech company, as the “human component” of the Turing test. rice field. A function of a robot named Ava (Alicia Vikander). In this movie, Nathan wrote the code to build Ava, and Caleb participated in testing Ava’s functionality. However, in one scene, Ava creates a drawing of Caleb. At this point in the film, it is clear that Nathan created Ava, and it is equally clear that Caleb is the human component of Ava in its final form. But within all this clarity, there are unresolved and unanswered questions. Who owns the artwork created by Ava?

Is it Nathan because he created the software, code, and physically constructed Ava? Is it Caleb because the artwork was created for his direction and his interests? Or is it Ava because she literally painted this work of art? When addressing this question as the Copyright Office did, Ava takes ownership of this art solely on the basis of the fact that it is essentially a computer, despite showing the characteristics of a “human”. Not eligible to get. As the film suggests, we need to evaluate how we understand our future relationship with artificial intelligence, and some of that consideration is that this Copyright Office’s ruling is in the future of NFTs. How will it affect you?


Many NFT art projects are generative, like the artwork created by the “creativity machine”. Generative art, sometimes referred to as “coding art,” is the process of providing the basic layers of art and various codes and algorithms that are processed by a computer to output the artwork. The artwork used is usually owned by the artist. The code used is usually owned by the software author. But the question remains. Who owns the output of the computer?

There is a recent case law on this issue (Rearden LLCv. See Walt DisneyCo., 293F.Supp. 3d 963 (ND Cal. 2018) (Some authorities say that if a program “occupies the majority of the work,” the copyright protection given to the computer program can extend to the output of the program. It’s safe to say, admitting that it’s suggesting. It’s still a complex and unresolved issue in copyright law. Perhaps the Copyright Office and other governing bodies have further guidance on these ever-changing questions. Will provide.

Click here for the full decision of the US Copyright Office Review Board.

Click here for an overview of copyrighted works.

This alert provides general coverage for that subject area. We understand that Frankfurt Kurnit Klein & Selz is not involved in providing legal advice and is not responsible for any damages resulting from errors, inaccuracies or omissions. Our lawyers practice legal affairs only in properly authorized jurisdictions. We do not want to represent clients in other jurisdictions.

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