AI authorship? Dead on arrival.
On January 23, the U.S. Department of Justice fired off a brief to the Supreme Court, begging them to swat down Stephen Thaler’s latest Hail Mary. Thaler, the inventor behind the so-called Creativity Machine, wants copyright for an image it spat out — titled “A Recent Entrance to Paradise.” No humans involved, he admits. Just pure machine magic. The Copyright Office said no. Courts backed them up. Now the DOJ’s piling on, and here’s why it matters: this isn’t just about one trippy artwork. It’s a firewall against a flood of AI-generated slop claiming IP rights.
Look, Thaler’s been at this for years. His AI system churns out images autonomously — no prompts, no tweaks from him. He listed the machine as the “author” on his application. Office refused, saying human creation is non-negotiable. Review Board agreed: “autonomously created by artificial intelligence without any creative contribution from a human actor.”
Why Machines Can’t Hold Copyrights
The DOJ’s brief, penned by Solicitor General D. John Sauer, dismantles Thaler’s case piece by piece. Start with the basics — the Copyright Act assumes authors are human. Ownership vests in the author? Machines can’t own property. Term lasts life-plus-70? Bots don’t die. Termination rights to spouses and kids? Good luck with that.
“a machine ‘cannot own property.’ The duration of copyright is typically measured by the life of the author plus 70 years, but machines ‘do not have ‘lives’’.”
That’s straight from the brief. Brutal, right? And it echoes back to 1884’s Burrow-Giles v. Sarony, where the Court okayed photo copyrights because the photographer’s “intellectual invention” shone through. Thaler’s setup? Zero invention from him. He disavowed any control.
But wait — Thaler’s team cries foul. What about works made for hire? Corporations get authorship cred via employees or contracts. Why not AI? DOJ shuts that down hard. No employment relationship with a nonhuman. No written agreement possible. Congress said “considered the author” for hires — deliberate language tying back to humans.
Thaler’s petition, filed last fall, warns of doom for photographers and tech-assisted art. Copyright Office is playing humanity gatekeeper, he says, ignoring originality as the real test.
Here’s my take, the one you won’t find in the briefs: this reeks of the 19th-century camera wars. Back then, judges fretted photos were mechanical copies, not creative. They carved out space for human judgment — lighting, pose, angle. Today, it’s AI. But the architecture hasn’t shifted. Law still anchors on intellect, not output. Predict this: SCOTUS denies cert, and we see a decade of hybrid cases — human + AI gets protection if the human steers. Pure AI? Orphan works, public domain fodder. Companies like OpenAI will spin tales of assistance, but Thaler’s purity play exposes the bluff.
Can AI-Helped Works Still Get Copyright?
DOJ insists the case is narrow. No blanket ban on AI tools. Copyright Office greenlights stuff with human creative control. Think: prompt engineering, editing, curation. Thaler’s sin? Listing the machine as author and claiming zero input.
“the Copyright Office does not refuse to register works simply because AI was used in the creative process. Instead, the agency considers ‘the extent to which the human had creative control over the work’s expression.’”
Spot on. As early as 1966, the Office flagged computers: is it human authorship at core? D.C. Circuit nailed it — affirm summary judgment, no human, no dice.
Amici are piling in. Academics led by Shlomit Yanisky-Ravid back Thaler. Conservative groups like Phyllis Schlafly Eagles too. But DOJ calls BS: no circuit split, no need for cert.
And here’s the why — the deep architecture shift lurking. Copyright’s built for incentives to create, tied to human markets. Machines scale infinitely, no scarcity. Grant them rights, and IP floods with uncompensated human training data derivatives. Courts know this. Expect rulings forcing disclosure: how much AI? Who prompted? It’s the new metadata war.
Critique Thaler’s PR spin — he paints this as tech progress stifled. Nah. It’s legal hygiene. Without human hooks, AI art’s a commons grab. Smart creators will adapt, blending tools transparently.
What Happens If SCOTUS Takes It Anyway?
Unlikely. Docket shows no conflicts. But if? They’d rewrite “author” for the neural age. Bold prediction: they won’t. Stare decisis on Sarony holds. Instead, Congress might tweak — work-for-AI-hire doctrines, maybe.
Meanwhile, Europe’s humming along with text-and-data mining exceptions. U.S. stays human-first. Developers, take note: train on licensed data, claim your input, register boldly.
This saga’s just starting. Thaler’s bid spotlights the fault line — autonomy vs. assistance. DOJ’s brief? A stake in the ground.
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Frequently Asked Questions
What is the Thaler AI copyright case about?
Stephen Thaler wants Supreme Court review after lower courts rejected copyright for his AI-generated image, claiming the Creativity Machine as author.
Can AI-generated art get copyright protection?
Not if fully autonomous and no human creative input, per DOJ and courts. Human-assisted works can, based on control level.
Will this affect AI tools like DALL-E or Midjourney?
No direct hit — those require human prompts. But it pushes for clear human authorship claims in registrations.
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