The AI Copyright Conundrum Continues – An Update

A recent article in The Hollywood Reporter explores TV and movie studios' potential use of AI for generating scripts. Scott Hervey and Jamie Lincenberg discuss this and other statements in the article on this episode of The Briefing. Watch this episode on the Weintraub YouTube channel here.   Show Notes: Scott: An August 23rd article in The Hollywood Reporter had the title, “Studio’s Offer to Writer May Lead to AI-created Scripts that are Copyrightable.” The article acknowledged that copyright law doesn't recognize works solely created by artificial intelligence, but the article theorized that by incentivizing writers to participate in the creation process, studios may have a better shot at getting that work protected. We are going to dissect some of the statements made in this article in light of the recent ruling by the D.C. District Court that AI works are not entitled to copyright protection on this installment of The Briefing by Weintraub Tobin. Let's set the stage with a recent ruling by Judge Howell in the lawsuit brought by Stephen Thaler against the Copyright Office based on the Office's rejection of his application to register their work. A recent entrance to paradise. The work was created by an AI technology called Creativity Machine and was submitted for copyright registration in 2018 by Stephen Thaler as a work made for hire, in which Thaler listed the Creativity Machine as the author and Thaler as the copyright owner. In his application, Thaler left a note from the Office stating that the work was autonomously created by a computer algorithm running on a machine, and he was seeking to register his computer-generated work as a work for hire as the owner of the Creativity Machine. Jamie: We previously covered the Copyright Office's rejection of Thaler's application in March of last year. Basically, the Copyright Office rejected Thaler's application because it lacked the human authorship necessary to support a copyright claim. Thaler appealed the rejection to the District Court for the District of Columbia, and the Court upheld the rejection of Thaler's application, holding that human authorship is an essential part of a valid copyright claim. Scott: Right. The single legal question before the Court was whether a work generated autonomously by a computer falls under the protection of copyright law upon its creation. The Court acknowledged that copyright is designed to adapt with the times and that copyright law has proven malleable enough to cover works created with or involving technologies developed long after the traditional media of writings memorialized on paper. But underlying that adaptability and that malleability has been a constant understanding that human creativity is at the core of copyrightability, even as that human creativity is channeled through new tools or into new media. Jamie: The Court cited the 1884 Supreme Court case of Borough Giles Lithographic Company versus Serenay, which upheld the constitutionality of an amendment to the Copyright Act to cover photographs. In that case, the Supreme Court reasoned that photographs amounted to copyrightable creations of authors despite being issued from a mechanical device that merely reproduced an image of what is in front of the device because the photographic result nonetheless represented the original intellectual conceptions of the author. Scott: The Court said that at its founding, copyright was conceived of as a form of property that the government established to protect.