Jenna Munnelly

“ The Court held that photographs were copyrightable creation of “authors” because they reflected creative choices by humans. Id. at 57–59. The then-copyright statute protected the creation of “authors” and the Court construed an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature” and found that photographs were protected by copyright as “representatives of original intellectual conceptions of [an] author.” ”

“ Unlike humans, machines do not have rights of free expression, and do not need economic incentives to create and disseminate expressive content. Cf. Dkt. 13-7 at US_0000025 (Plaintiff’s admission that “machines do not have legal personality”) . For this reason, the Supreme Court has described copyright as “advanc [ing] public welfare,” by rewarding “ [s] acrificial days devoted to such creative activities.” Mazer, 347 U.S. at 219. But machines built to generate works autonomously—like the Creativity Machine—do not “sacrifice” time. A machine functions as designed without motivation or reward. ”

“ As to the first and second sentences of Paragraph 46, Defendants admit that “AI is not a legal person and does not have rights” and Defendants admit that AI cannot “‘own’ intellectual property.” The third and fourth sentences of Paragraph 46 include statements of law that require no response and conclusory statements made by Plaintiff that require no response. To the extent the paragraph is deemed to contain allegations that require a response, the same are denied. ”

“ See 17 U.S.C. § 202 (“Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object.”) . [14] Plaintiff’s invitation to apply physical property doctrines such as accession and first possession to copyright would contravene the statutory scheme and upend the foundations of copyright law. ”

“ However, Plaintiff’s claim that the Work is “adequately creative” because it “contains visual elements in a novel way” misses the point. Id. at 9. The question of the category of the Work or its creativity is not the inquiry on which the Office based its refusal decision. See Dkt. 13-8. Section 102 protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102 (a) . Creativity and originality are required, but not sufficient for protection; it is only the creativity and originality of “authors”—humans—that are eligible for copyright. ”

“ Mathews, 403 F. Supp. 1235, 1238 (D.D.C. 1975) (individual entering into a contract “must have the legal and mental capacity to decide what is truly in his or her own interest”) . With regard to the latter, a work made for hire in an employment relationship must have been created by an employee “within the scope of his or her employment.” ”

“ Human creativity was essential: had the photograph been a “mere mechanical reproduction” that “involve [d] no originality of thought or any novelty in the intellectual operation,” then “copyright [would offer] no protection.” Id. at 59.
Contrary to Plaintiff’s argument, nothing in Sarony requires registration of the Work at issue in this case. Unlike the Work here, which Plaintiff claims was created “autonomously,” Dkt. 13-2 at US_0000001, the human photographer in Sarony made creative choices such as how he arranged the subject and altered the lighting of the scene. ”

“ Clarifying ownership in real property is important not just to avoid disputes, but also to establish who is responsible for caring for the property. By contrast, unowned expressive works reside in the public domain. See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) . ↑ The Copyright Office’s human authorship requirement also satisfies the somewhat stricter Chevron standard, which obliges a court, ordinarily, to leave undisturbed a reasonable agency interpretation of a statute if Congress has not directly addressed the issue presented. ”

“ Congress’s use of personal pronouns to refer to the employee’s relationship with the employer indicates that Congress intended such employees to be human, not machines. [17] The “Creativity Machine” is not a person, is not Plaintiff’s employee, and is not Plaintiff’s agent. The work made for hire doctrine does not apply here. ”

“ See Dkt. 17 at 4 (characterizing the works for hire provision as a “carve out”) . [1]
Third, Plaintiff misconstrues the case-law on human authorship. AI is an emerging technology, and neither Plaintiff nor Defendants are aware of cases specifically addressing whether AI can be considered an author under the Act. Appellate Courts have, however, considered analogous cases regarding works created by animals, nature, and other non-humans. ”

“ See, e.g., Sony, 464 U.S. at 429 (exclusive right in intellectual property involves “a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information, and commerce on the other hand”) ”

“ Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) . “When evaluating cross-motions for summary judgement, each motion is reviewed ‘separately on its own merits to determine whether [any] of the parties deserves judgment as a matter of law.” ”

“ Plaintiff claimed that because copyright serves as “a financial incentive to generate expressive works,” copyright for machine-generated works would provide economic incentives for developing “creative AIs” capable of generating new expressive material. Dkt. 13-7 at US_0000024–25; see also id. at US_0000024 (arguing that “ [b] oth the U.S. Constitution and principles of good public policy require that the Office permit ‘AI-generated works’ or ‘computer-generated works’ (CGWs) to receive copyright protection”) . ”

“ Initial Refusal Letter 8/12/2019 Refusal Letter sent by Copyright Office US_0000005–US_0000007 Ex. E “A Recent Entrance to Paradise” First Reconsideration Request 9/23/2019 [1] First Request for Reconsideration submitted by applicant US_0000008–US_0000018 Ex. F “A Recent Entrance to Paradise” Refusal of First Request for Reconsideration 3/30/2020 Refusal Letter sent by Copyright Office US_0000019–US_0000021 Ex. G “A Recent Entrance to Paradise” Second Reconsideration Request 5/27/2020 Second Request for Reconsideration submitted by applicant US_0000022–US_0000030 Ex. ”

“ In a letter, the Office of Registration Policy & Practice again explained that the Trade-Mark Cases and Sarony limited copyright law to protecting only the creations of human authors. Id. at US_0000019. ”