Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 25 of 34
arrangement of visual elements in the Work is not determinative. Rather, the Work’s defect is that its “author” is not human and, therefore, it cannot be a “work of authorship” under § 102(a).
| 5. | Plaintiff Cannot Supplement the Administrative Record Regarding the Work’s Creation |
The Court should not credit Plaintiff’s statement, made for the first time in his Motion, that he “provided instructions and directed his AI to create the Work,” that “the AI is entirely controlled by Dr. Thaler,” or that “the AI only operates at Dr. Thaler’s direction.” Dkt. 16 at 25–26. These unsubstantiated allegations were not part of the Administrative Record before the Copyright Office.[1] The Office was entitled to rely on Plaintiff’s contemporaneous statements and “accept[] as a threshold matter Thaler’s representation that the Work was autonomously created by artificial intelligence without any creative contribution from a human actor.” Dkt. 13-8 at US_0000032. In any event, even if Plaintiff “created an AI that he directed to create artwork,” Dkt. 16 at 1, that does not mean that he directed the specific contents of any work, which is what copyright protection requires.
- ↑ Plaintiff is incorrect in stating that the Office “could have informed him that he should list himself as the author of the Work.” Dkt. 16 at 25. The Office refused the Work because Plaintiff did not “author” any part of the Work. As he made clear, the Work was created “autonomously by machine.” Dkt. 16 at 3 (quoting Dkt. 13-2 at US_0000001). The application’s defect was substantive, not clerical.
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