Tamara S. Pester, LLC
Tamara Pester to U.S. Copyright Office (July 12, 2023) (“Second Request”). The Second Request presented several arguments. First, Mr. Allen argued that, in finding that the image generated by Midjourney lacks the human authorship essential for copyright protection, “the Office ignore[d] the essential element of human creativity required to create a work using the Midjourney program.” Id. at 1. Mr. Allen argued that his “creative input” into Midjourney, which included “enter[ing] a series of prompts, adjust[ing] the scene, select[ing] portions to focus on, and dictat[ing] the tone of the image,” is “on par with that expressed by other types of artists and capable of Copyright protection.” Id. at 4. He further contended that the fair use doctrine “would allow for registration of the work” because it “allows for transformative uses of copyrighted material.” Id. at 1, 9. Mr. Allen argued that, “[i]n this case, the underlying AI-generated work merely constitutes raw material which Mr. Allen has transformed through his artistic contributions.” Id. at 11 (emphasis in original). Therefore, “regardless of whether the underlying AI-generated work is eligible for copyright registration, the entire Work in the form submitted to the copyright office should be accepted for registration.” Id. at 1, 9–11.
Next, he asserted that, by refusing to register content generated via Midjourney and other generative AI platforms, “the Office is placing a value judgment on the utility of various tools,” and that denial of copyright protection for the output of such tools would result in a void of ownership. Id. at 6, 9. Finally, he objected to the Office’s registration requirements for works containing AI-generated content, stating that “[r]equiring creators to list each tool and the proportion of the work created with the tool would have a burdensome effect if enforced uniformly.” Id. at 7–8.
III. DISCUSSION
After carefully examining the Work and considering the arguments made in the First and Second Requests, the Board finds that the Work contains more than a de minimis amount of AI-generated content, which must be disclaimed in an application for registration. Because Mr. Allen has refused to disclaim the material produced by AI, the Work cannot be registered as submitted.
A. Originality and the Human Authorship Requirement
The Copyright Act protects, and the Office registers, “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102(a). Courts have interpreted the statutory phrase “works of authorship” to require human creation of the work. See Thaler v. Perlmutter, No. 22-cv-1564, 2023 WL 5333236, at *4 (D.D.C. Aug. 18, 2023) (stating that “human authorship is a bedrock requirement of copyright” in affirming the Office’s refusal to register a work “autonomously” created by AI). For this reason, courts have uniformly rejected attempts to protect the creations of non-humans through copyright. For example, the Ninth Circuit held that a book containing words “‘authored’ by non-human spiritual beings” can only gain copyright protection if there is “human selection and arrangement of the revelations.” Urantia Found. v. Kristen Maaherra, 114 F.3d 955, 957–59 (9th Cir. 1997) (holding that “some element of human creativity must have occurred in order for the Book to be copyrightable” because “it is not creations of divine beings that the copyright laws were intended to protect”). Similarly, a monkey cannot register a copyright in photos it captures with a camera because the Copyright Act refers to an author’s “children,” “‘widow,” “grandchildren,” and “widower,”—
-3-
