throbber
USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 1 of 60
`
`ORAL ARGUMENT NOT YET SCHEDULED
`CASE NO. 23-5233
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE DISTRICT OF COLUMBIA
`________________________________
`
`STEPHEN THALER, an individual,
`Plaintiff and Appellant,
`v.
`SHIRA PERLMUTTER, in her official capacity as Register of
`Copyrights and Director of the United States Copyright Office;
`U.S. Copyright Office,
`Defendant and Appellee.
`________________________________
`On Appeal from the United States District Court for the District of
`Columbia, Case No. 1:22-cv-01564 (Hon. Beryl A. Howell)
`________________________________
`BRIEF OF LEGAL PROFESSORS SHLOMIT YANISKY-
`RAVID, GE CHEN, ADAM GUTTENTAG, LAWRENCE LESIG,
`AND CHRISTOPHER MASON, AND OF DISABLED
`VETERAN ELISA SHUPE, AS AMICI CURIAE IN SUPPORT
`OF APPELLANT AND URGING REVERSAL
`________________________________
`Ryan N. Phelan
`Marshall, Gerstein & Borun LLP
`233 South Wacker Drive
`Suite 6300, Chicago, IL 60606-6357
`Phone: 312-474-6607
`E: rphelan@marshallip.com
`
`Counsel for Amici Curiae
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 2 of 60
`
`CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
`Pursuant to D.C. Circuit Rule 28(a)(1), Amici Curiae as identified
`
`herein certifies as follows:
`
`A. Parties and Amici
`
`All parties, in all parties, intervenors, and amici appearing [before
`
`the district court and] in this court are listed in the Brief for Stephen
`
`Thaler. See Statement of Issues to be Raised and Certificate as to
`
`Parties, Rulings, and Related Cases, Case No. 23-5233 (D.C. Cir., Nov.
`
`17, 2023) (Doc. #2027726).
`
`The Amici Curiae are not, and do not represent, a corporation,
`
`association, joint venture, partnership, syndicate, or other similar
`
`entity pursuant to D.C. Circuit Rule 26.1. Instead, the Amici Curiae
`
`comprise individuals represented in their individual respective
`
`capacities.
`
`B. Rulings Under Review
`
`References to the rulings at issue appear in the Brief for Stephen
`
`Thaler. See Statement of Issues to be Raised and Certificate as to
`
`Parties, Rulings, and Related Cases, Case No. 23-5233 (D.C. Cir., Nov.
`
`17, 2023) (Doc. #2027726).
`
`i
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 3 of 60
`
`C. Related Cases
`
`Amici Curiae are not aware of any related cases.
`
`Dated: January 25, 2024
`
`By: /s/ Ryan N. Phelan
`Ryan N. Phelan
`Marshall, Gerstein & Borun LLP
`233 South Wacker Drive
`Suite 6300, Chicago, IL 60606-6357
`Phone: 312-474-6607
`E: rphelan@marshallip.com
`
`Counsel for Amici Curiae
`
`ii
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 4 of 60
`
`II.
`
`TABLE OF CONTENTS
`TABLE OF AUTHORITIES ...................................................................... v
`Statement of Identity, Interest in Case, and Source of
`Authority to File ............................................................................... 1
`Summary of Argument .............................................................................. 5
`ARGUMENT ............................................................................................. 5
`I.
`COPYRIGHT REGIME AND ARTIFICIAL INTELLIGENCE ...... 5
`1.
`Copyright Law Was Meant to Adapt to New
`Technologies. ........................................................................... 7
`Adopting The “Lion Share” Test to Grant Copyright to
`Computer Generated Works of Art ....................................... 15
`COPYRIGHT PROTECTION FOR AI-GENERATED
`WORKS IS A CRUCIAL CATALYST FOR ECONOMIC
`GROWTH ....................................................................................... 18
`1.
`Copyright for AI-Created Works Are Key to Economic
`Growth and U.S. Technological Leadership; No
`Copyright Protections Would Be a Death Sentence. ............ 18
`III. GLOBAL IMPACT OF U.S. CREATIVE INDUSTRIES
`IS AT RISK ..................................................................................... 24
`1.
`Copyright Nullification in AI Works Drives Creative
`Industry Offshore .................................................................. 24
`Global Comparative Trend Of Copyrighting
`Autonomous Works: U.S. Must Not Lag Behind .................. 26
`IV. GRANTING COPYRIGHT TO GENERATIVE AI USERS
`SUPPORTS DISABILITY ACCOMMODATION .......................... 34
`1.
`AI is an Important Tool for Creative People with
`Disabilities to Protect Their Creative Works ....................... 34
`
`2.
`
`2.
`
`iii
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 5 of 60
`
`V. NEW U.S. COPYRIGHT OFFICE GUIDELINES FOR
`AI-GENERATED WORKS CREATES A HUMAN
`CONTRIBUTION MANDATE WHICH MAY BE
`IMPRACTICAL .............................................................................. 36
`
`iv
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 6 of 60
`
`TABLE OF AUTHORITIES
`
`Cases
`Beijing Film Law Firm v. Beijing Baidu Netcom Technology Co., Ltd,
`Beijing Internet Court (2018) Beijing 0491 Min Chu No. 239 ...... 31
`Burrow-Giles Lithographic Co. v. Sarony,
`111 U.S. 53 (1884) .................................................................... 11, 12
`Eldred v. Ashcroft,
`537 U.S. 186 (2003) ........................................................................ 18
`Express Newspapers Plc v Liverpool Daily Post and Echo Plc and
`others,
` [1985] 3 All ER 680 ....................................................................... 28
`Kewanee Oil Co. v. Bicron Corp.,
`416 U.S. 470 (1974) ........................................................................ 25
`Liv. Liu,
`Beijing Internet Court (2023) Beijing 0491 Min Chu No. 11279 .. 32
`Lindsay v. Wrecked & Abandoned Vessel R.M.S. TITANIC,
`1999 WL 816163 (S.D.N.Y. Oct. 13, 1999) ..................................... 10
`Mazer v. Stein,
`347 U.S. 201(1954) ....................................................................... 8, 9
`Mozur, Paul
`Beijing Wants AI to Be Made in China by 2030,
`N.Y. TIMES (July 20, 2017) ........................................................... 25
`Nova Productions Ltd. v. Mazooma Games Ltd & Others,
`[2007] EWCA Civ 219 .................................................................... 28
`Rearden LLC v. Walt Disney Co.,
`293 F. Supp. 3d 963 (N.D. Cal. 2018) ............................................ 16
`Shenzhen Tencent Computer System Co., Ltdv. Shanghai Yingxun
`Technology Co. Ltd,
`
`v
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 7 of 60
`
`People’s Court of Nanshan (District of Shenzhen) (2019)
`Yue 0305 Min Chu No. 14010 ........................................................ 32
`Torah Soft Ltd. v. Drosnin,
`136 F. Supp. 2d 276 (S.D.N.Y. 2001) ............................................. 17
`Twentieth Century Music Corp. v. Aiken,
`422 U.S. 151 (1975) .......................................................................... 9
`Statutes
`17 U.S.C. § 101 ........................................................................................ 17
`17 U.S.C. § 102 ........................................................................................ 15
`17 U.S.C. § 201 ........................................................................................ 17
`Other Authorities
`110 Cong. Rec. H10238 (daily ed. Sept. 27, 2008) .................................. 21
`Americans with Disabilities Act (ADA), Title I, 42 U.S.C. §§ 12111 (9).
`(September 25, 2008).......................................................... 39, 41, 42
`Andressen, Marc
`Why AI Will Save the World, ANDREESSEN HOROWITZ (June 6,
`2023), https://a16z.com/ai-will-save-the-world/. .............................. 6
`Artificial Intelligence Call For Views: Copyright And Related Rights,
`THE INTELLECTUAL PROPERTY OFFICE OF THE UNITED KINGDOM (last
`updated Mar. 23, 2021) .................................................................. 31
`Artist in the US Workforce (2020) .......................................................... 41
`Bankhurst, Adam
`The 15 Highest Grossing Movies of All Time, IGN (updated Nov.
`16, 2023) ......................................................................................... 26
`Bo, Zhou
`Artificial Intelligence and Copyright Protection --Judicial Practice
`in Chinese Courts, WIPO ............................................................... 37
`
`vi
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 8 of 60
`
`Chen, Ge
`Copyright and International Negotiations: An Engine of Free
`Expression in China? 21–32 (2017) ............................................... 36
`Chu et al.,
`The Economic Potential of Generative AI: The Next Productivity
`Frontier, MCKINSEY AND CO., (2023) .............................................. 22
`Copyright Registration Guidance: Works Containing Material
`Generated, by Artificial Intelligence,
`88 Fed. Reg. 16,190 (Mar. 16, 2023) .............................................. 42
`Copyright, Designs and Patents Act (CDPA) 1988 ................................ 31
`Digital Audio Workstation Market Size & Share Analysis - Growth
`Trends & Forecasts (2023 - 2028) (2023)
`https://www.mordorintelligence.com/industry-reports/digital-
`audio-workstation-market. ............................................................ 15
`Elliot, David
`AI Represents Huge Opportunity for NI Tech Sector – Conference,
`BUSINESSLIVE (Oct. 27, 2023)......................................................... 35
`European Commission, Directorate-General for Communications
`Networks, Content and Technology, Hartmann, C., Allan, J.,
`Hugenholtz, P. et al.,
`Trends and developments in artificial intelligence – Challenges to
`the intellectual property rights framework – Final report,
`Publications Office of the European Union, 2020 ......................... 35
`Executive Office of the President,
`Artificial Intelligence, Automation, and the Economy (2016)....... 29
`Frater, Patrick
`Global Box Office Notched 27% Gain in 2022 to Hit $26 Billion
`Total, Research Shows, VARIETY (Jan. 5, 2023) ............................ 24
`Gilbert, Annelise
`Tech Group Warns AI Copyright Rules Could Send Innovation
`Abroad, BLOOMBERG LAW (Oct. 31, 2023) ................................ 28
`
`vii
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 9 of 60
`
`Global Advertising Market: Industry Trends, Share, Size, Growth,
`Opportunity and Forecast 2023-2028, IMARC GROUP .................. 25
`Global Television Broadcasting Market Surges to $287.81 Billion in
`2023, Fueled by Robust Growth in Subscription-Based Revenue
`Models, YAHOO! FINANCE (Aug. 1, 2023) ........................................ 24
`HOWARD B. ABRAMS AND TYLER T. OCHOA,
`THE LAW OF COPYRIGHT .................................................................. 10
`Hugenholtz, P. Bernt & Quintais, João Pedro
`Copyright and Artificial Creation: Does EU Copyright Law Protect
`AI-Assisted Output?, 52 INT’L REV. OF INTELL. PROP. &
`COMPETITION L. 1190 (2021) ..................................................... 35
`JARVIS, JEFF
`THE GUTENBERG PARENTHESIS: THE AGE OF PRINT AND ITS LESSONS
`FOR THE AGE OF THE INTERNET 7 (2023) ....................................... 8, 9
`Jones, Hollin
`What Is A DAW? - A Guide To The Digital Audio Workstation,
`https://www.steinberg.net/tutorials/what-is-a-daw/ ...................... 16
`Khan, B. Z.,
`The Democratization of Invention: Patents and Copyrights in
`American Economic Development, 1790-1920 (2005) ................... 28
`Litwak, Mark
`Attention, Filmmakers: Here’s What You Need to Know About
`Chain of Title (and Why You Need It), INDIEWIRE (Oct. 7, 2015) . 27
`Opinions of the Supreme People’s Court on Regulating and
`Strengthening the Applications of Artificial Intelligence in the
`Judicial Fields, § 19, 12 Aug. 2022 ................................................ 36
`Perspectives from the Global Entertainment & Media Outlook 2023–
`2027, PWC (June 21, 2023) ............................................................ 22
`Rappaneau, Dale
`Art-generating AI as an accessibility tool for disabled artists
`(January 25, 2023) ......................................................................... 40
`
`viii
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`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 10 of 60
`
`Register of Copyrights,
`Report of the Register of Copyrights on the General Revision of
`the U.S. Copyright Law (1961) ........................................................ 9
`Registration Decision on Zarya of the Dawn (Feb. 21, 2023) ................. 42
`Review Board Decision on SURYAST (Dec. 11, 2023) ........................... 43
`Reyburn, Scott
`Art Market Has Climbed Above Prepandemic Level, Major Study
`Says, THE NEW YORK TIMES (updated April 6, 2023) .................... 25
`Ringer, Barbara A.
`Role of the United States in International Copyright-Past,
`Present, and Future, 56 GEO. L. J. 1050 (1968) ........................... 28
`Scannell, Barry
`When Irish AIs are Smiling: Could Ireland’s Legislative Approach
`be a Model for Resolving AI Authorship for EU Member States?,
`17 J. OF INTELL. PROP. L. & PRAC. 727 (2022) ................................ 33
`Siwek, Stephen E.,
`Copyright Industries in the U.S. Economy: The 2018 Report
`(2018), available at
`https://iipa.org/files/uploads/2018/12/2018CpyrtRptFull.pdf ........ 21
`Smirke, Richard
`IFPI Global Report 2023: Music Revenues Climb 9% to $26.2
`Billion, BILLBOARD (Mar. 21, 2023) ................................................ 24
`Software Services Global Market Report 2023, YAHOO! FINANCE (June
`28, 2023) ......................................................................................... 25
`Spulber, Daniel
`How Patents Provide the Foundation of the Market For
`Inventions, 11 J. COMP. L. & ECON. 271 (2014) ............................. 21
`Stoner, Robert and Dutra, Jessica
`Copyright Industries in the U.S. Economy: The 2022 Report, IIPA,
`Dec. 2022,
`https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4453588 .... 20
`
`ix
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 11 of 60
`
`Toshniwal, Akshita
`Video-Gaming Revenue To Grow 2.6% In 2023 On Console Sales
`Strength – Report, REUTERS (Aug. 8, 2023) ................................... 24
`U.S. Const., Art. I, § 8, cl. 8 ....................................................................... 8
`What is AI Art? How Art Generators Work (2023) ................................ 40
`What is the Public Domain?,
`COPYRIGHTLAWS.COM (Mar. 7, 2023) .............................................. 27
`What Musicians Should Know About Copyright (2023)
`https://www.copyright.gov/engage/musicians/ ............................... 16
`Woollaston, Victoria
`The Surprisingly Subtle Ways Microsoft Word Has Changed How
`We Use Language, BBC (Oct. 25, 2023) ........................................ 26
`Yanisky-Ravid, Shlomit
`Generating Rembrandt: Artificial Intelligence, Copyright, and
`Accountability in the 3A Era--The Human-like Authors are
`Already Here- A New Model, 2017 Mich. St. L. Rev. 659, 665-66
`(2017) ................................................................................................ 6
`Yanisky-Ravid, Shlomit & Liu, Xiaoqiong
`When Artificial Intelligence Systems Produce Inventions: The 3A
`Era and an Alternative Model for Patent Law, 39 CARDOZO L. REV.
`2215, 2231 (2018) ........................................................................... 14
`Yanisky-Ravid, Shlomit and Velez-Hernandez, Luis Antonio,
`Copyrightability of Artworks Produced by Creative Robots and the
`Concept of Originality: The Formality - Objective Model, MINN J.
`L. SCI. & TECH., at *56 (March 31, 2017),
`https://ssrn.com/abstract=2943778. ................................................. 7
`Rules
`Federal Rule of Appellate Procedure 29 ................................................... 1
`Treatises
`1 Nimmer on Copyright § 2.03 (2023) ..................................................... 16
`
`x
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 12 of 60
`
`Copyright Ordinance (Chapter 528) ....................................................... 29
`The Copyright Act 1957 .......................................................................... 29
`The Copyright Act 1978 .......................................................................... 29
`The Copyright Act 1994 .......................................................................... 29
`The Copyright and Related Rights Act of 2000 ...................................... 29
`
`xi
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`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 13 of 60
`
`Statement of Identity, Interest in Case, and Source of Authority to File1
`Professor Shlomit Yanisky-Ravid is an accomplished expert in
`
`Intellectual Property (IP) Law, specializing in the challenges artificial
`
`intelligence (AI) and emerging technologies pose to IP laws. Within the
`
`U.S. Copyright Association, Judge Katherine Forrest lauds Professor
`
`Yanisky-Ravid as the foremost thinker on AI and copyright. Professor
`
`Yanisky-Ravid’s various roles include or have included a Visiting
`
`Professor at Fordham Law School since 2012, a research fellow at Yale
`
`Law School’s Information Society Project since 2011, a board member of
`
`Penn State Dickinson Law IP & Innovation and the Global IP Alliance,
`
`the Head of Graduate Law School Commercial Law, High-Tech and
`
`Technology’, and a Senior Law Faculty Member at Ono Academic
`
`College, Law School in Israel, the latter of which where she founded the
`
`Shalom Comparative Research Institute, Eliyahu Law and Tech Center.
`
`1 Pursuant to Federal Rule of Appellate Procedure 29(a)(2), all parties
`have consented to the filing of this brief. No counsel for a party
`authored this brief in whole or in part. See Fed. R. App. P.
`29(a)(4)(E)(i). No party or party’s counsel contributed money that
`was intended to fund preparing or submitting the brief. See Fed. R.
`App. P. 29(a)(4)(E)(ii). No person – other than amici curiae, its
`members, or its counsel —contributed money that was intended to
`fund preparing or submitting the brief. See Fed. R. App. P.
`29(a)(4)(E)(iii).
`
`1
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 14 of 60
`
`She has won awards and scholarships for publications and research on
`
`the legal impact of AI and blockchain, including the visionary article
`
`“Generating Rembrandt” recognized by Michigan State University.
`
`Lawrence Lessig is the Roy L. Furman Professor of Law and
`
`Leadership at Harvard Law School. He previously taught at Stanford
`
`Law School, where he founded the Center for Internet and Society, and
`
`at the University of Chicago. He clerked for Judge Richard Posner on
`
`the 7th Circuit Court of Appeals and Justice Antonin Scalia on the
`
`United States Supreme Court. Lessig is the founder of Equal Citizens, a
`
`founding board member of Creative Commons, and serves on the
`
`Scientific Board of AXA Research Fund. As member of the American
`
`Academy of Arts and Sciences and the American Philosophical Society,
`
`he has received numerous awards including a Webby, the Free Software
`
`Foundation’s Freedom Award, Scientific American 50 Award, and
`
`Fastcase 50 Award. He is the author of numerous award-winning books.
`
`Dr. Christopher Mason is a Professor of Genomics, Physiology,
`
`and Biophysics at Weill Cornell Medicine. He also holds appointments
`
`at the Tri-Institutional Computational Biology and Medicine Program
`
`(Rockefeller University, Memorial Sloan-Kettering Cancer Center, and
`
`2
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 15 of 60
`
`Cornell University), affiliate appointments at Harvard Medical School
`
`and the Information Society Project (ISP) at Yale Law School, where he
`
`was a Fellow from 2006-2009. Dr. Mason is also the Director of the
`
`WorldQuant Initiative for Quantitative Prediction at Cornell, which
`
`builds and deploys AI algorithms in clinical practice, bioinformatics,
`
`and biotechnology.
`
`Dr. Ge Chen is an Assistant Professor in Global Media and
`
`Information Law at Durham Law School. His research interests are
`
`media and information law and their constitutional and rule-of-law
`
`aspects in international and comparative perspectives, with a focus on
`
`China. He is the author of Copyright and International Negotiations:
`
`An Engine of Free Expression in China? (Cambridge University Press
`
`2017), a research monograph featured in Harvard Law Review. He is a
`
`Fellow of the Information Society Project at Yale Law School and was a
`
`research associate at Mercator Institute for China Studies, the largest
`
`China-related think tank of the European Union. His work was cited by
`
`the European Commission in its 2017 legislation report and the U.S.
`
`China Economic and Security Review Commission’s 2023 annual report
`
`to the Congress.
`
`3
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 16 of 60
`
`Adam Guttentag is a Shalom Comparative Research Institute
`
`Fellow. He has also led a global partnership program team at Oosto
`
`(formerly AnyVision), an AI based machine vision company.
`
`Ms. Elisa Rae Shupe is a career veteran with a 100% permanent
`
`and total disability rating. See Exhibit 1, Letter from Department of
`
`Veterans Affairs (Oct. 17, 2023). Ms. Shupe finds creating most effective
`
`when she can convey her ideas to an artificial intelligence (AI) tool such
`
`as ChatGPT. See id. The tool can translate Ms. Shupe’s concepts into
`
`well-crafted language that meets the quality guidelines of author
`
`platforms. This personalized approach leverages her focused interests
`
`and optimizes her creative output. Id.
`
`The district court’s decision is of interest to the above identified
`
`Amici Curiae, not merely because the decision was wrongly decided, but
`
`because of its potentially destructive effect on the U.S. copyright
`
`regime. The U.S. is a leader in the creative industries and the district
`
`court’s interpretation of copyright laws jeopardizes billions of dollars in
`
`current and future investments, threatens U.S. competitiveness, and
`
`reaches a result at odds with the spirit of the Copyright Act.
`
`4
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 17 of 60
`
`Summary of Argument
`Copyright law was meant to, and has in various cases, adapted to
`
`new technologies, including computer-related technologies. Such
`
`adaptation with respect to Artificial Intelligence (“AI”) is critical to
`
`allow U.S. economic growth and U.S Technical Leadership in this
`
`growing field. It is to the disadvantage of the U.S. to preclude copyright
`
`protection of AI generate works where foreign jurisdictions have
`
`allowed such protection. Further, AI provides an important tool for
`
`disabled artists to create artwork; without copyright protection, such
`
`artists would be unfairly impacted.
`
`I.
`
`ARGUMENT
`COPYRIGHT REGIME AND ARTIFICIAL INTELLIGENCE
`AI is being increasingly deployed across various U.S. creative
`
`industries. The use of AI promises significant increases in efficiency and
`
`creativity, surpassing the capabilities of traditional methods in terms of
`
`scale, speed, creativity, and as a repository of knowledge.2 AI can
`
`2 Shlomit Yanisky-Ravid, Generating Rembrandt: Artificial Intelligence,
`Copyright, and Accountability in the 3A Era--The Human-like
`Authors are Already Here- A New Model, 2017 Mich. St. L. Rev. 659,
`665-66 (2017).
`
`5
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`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 18 of 60
`
`handle vast datasets and complex tasks that would be impractical or
`
`impossible for a human creator to manage within reasonable efforts and
`
`timeframes. AI systems can significantly help industries, artists, and
`
`creators to lower the cost of the initial development of creative goods
`
`such as music, art, literature, software, design, and inventions.3 With
`
`the advent of AI and its rapid adoption, we can no longer refer to the
`
`creative process as solely and individually being in the hands of
`
`humans. Complex AI algorithms are breaking the traditional monopoly
`
`of human creativity, coexisting alongside and integrating with the
`
`copyrightable regime, and are indeed becoming a significant part of the
`
`creative landscape.4 This integration with human creativity raises a
`
`question regarding how copyright applies to AI generated works. While
`
`there has been a recent surge in AI advancements, new technologies
`
`have not historically impeded the copyrightability of IP. The following
`
`3 Marc Andressen, Why AI Will Save the World, ANDREESSEN HOROWITZ
`(June 6, 2023), https://a16z.com/ai-will-save-the-world/.
`4 Yanisky-Ravid, Shlomit and Velez-Hernandez, Luis Antonio,
`Copyrightability of Artworks Produced by Creative Robots and the
`Concept of Originality: The Formality - Objective Model, MINN J. L.
`SCI. & TECH., at *56 (March 31, 2017),
`https://ssrn.com/abstract=2943778.
`
`6
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 19 of 60
`
`subchapters argue that granting copyright to AI generated works fits
`
`into the existing copyright regime.
`
`Copyright Law Was Meant to Adapt to New Technologies.
`1.
`Technology and copyright have always been intertwined. The
`
`advent of the printing press in the 15th century kickstarted a nearly
`
`600-year tug-a-war between technology and intellectual property law.
`
`The first novel and regularly published newspaper were created in
`
`1605, leading to new economic models for a burgeoning industry.5 These
`
`technological and economic advances led to the first copyright law, The
`
`Statute of Anne, enacted in England in 1710. The need for copyright
`
`protections followed a major technological invention—the printing
`
`press—and it granted rights to publishers utilizing this new
`
`technology.6 The launch of various mediums—cameras, word
`
`processors, the internet, social media, video—revolutionized how
`
`5 JEFF JARVIS, THE GUTENBERG PARENTHESIS: THE AGE OF PRINT AND ITS
`LESSONS FOR THE AGE OF THE INTERNET 7 (2023)
`6 Id. at 7, 215.
`
`7
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`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 20 of 60
`
`individuals exploit, control, and understand IP.7 Now AI has
`
`kickstarted the next stage in the evolution.8
`
`The Constitution echoes this goal as well, stating that Congress
`
`has the obligation “to promote the Progress of Science and useful Arts”9
`
`by a variety of means, which includes copyright law. Further, in 1901,
`
`when Congress updated the Copyright Act, it declared that it was “not
`
`primarily for the benefit of the author, but primarily for the benefit of
`
`the public such rights are given.”10 This was further explained in the
`
`1961 Report of the Register of Copyrights, with the first chapter
`
`entitled “Theories of Copyright” and explaining “[a]s reflected in the
`
`Constitution, the ultimate purpose of copyright legislation is to foster
`
`the growth of learning and culture for the public welfare, and the grant
`
`of exclusive rights to authors for a limited time is a means to that
`
`end."11 The Supreme Court explained in Mazer v. Stein that, “[t]he
`
`7 Id. at 8.
`8 Id. at 9.
`9 U.S. Const., Art. I, § 8, cl. 8
`10 See Jarvis supra note 5 at 218-219 (2023).
`11 Register of Copyrights, Report of the Register of Copyrights on the
`General Revision of the U.S. Copyright Law (1961), printed in House
`Comm. on the Judiciary, 87th Cong., 1st Sess., Copyright Law
`
`8
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 21 of 60
`
`economic philosophy behind the clause empowering Congress to grant
`
`patents and copyrights is the conviction that encouragement of
`
`individual effort by personal gain is the best way to advance public
`
`welfare through the talents of authors and inventors in ‘Science and
`
`useful Arts.’”12 Embracing new technologies to benefit the public good is
`
`a cornerstone of copyright theory. The Supreme Court further
`
`explained: “[c]reative work is to be encouraged and rewarded, but
`
`private motivation must ultimately serve the cause of promoting broad
`
`public availability to literature, music, and the other arts.”13 An
`
`intellectual property right is not a limitless natural one, rather, it is
`
`statutory, with limitation that must align with the framers goals of
`
`incentivizing the people and entities that contributed the “lion share” of
`
`work, even when generated by AI.14
`
`Revision Part 1 - Report of the Register of Copyrights on the General
`Revision of the U.S. Copyright Law, 3–6 (Comm. Print 1961)
`[hereinafter Register's Report] at 5.
`12Mazer v. Stein, 347 U.S. 201, 219 (1954).
`13 Twentieth Century Music Corp. v. Aiken, 422 U.S. 151, 156 (1975).
`14 HOWARD B. ABRAMS AND TYLER T. OCHOA, THE LAW OF COPYRIGHT §
`1:4; seealsoinfra Section I.2.
`
`9
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 22 of 60
`
`Granting copyright to works generated by AI aligns with existing
`
`U.S. copyright law and court decisions. The court’s analysis in Lindsay
`
`v. Wrecked & Abandoned Vessel R.M.S. TITANIC demonstrates the
`
`permissiveness in interpreting and granting copyrights. In Lindsay
`
`there was a question around authorship of a documentary.15 Although
`
`the author did not film the work himself, the accumulation of ideas,
`
`storyboards, and directions given to the film crew allowed the plaintiff
`
`to retain authorship.16 This analysis is similar to how users of AI can
`
`provide an AI system their respective ideas, details, and directions for
`
`the final product they desire. Given the similarity and how the court
`
`ruled in Lindsay, users of AI should be granted ownership and
`
`copyright to protect their work.
`
`Courts continue to evolve their interpretations of the Copyright
`
`Act to further advance the arts and sciences by embracing advanced
`
`technology. For example, in 1884, when cameras were a relatively new
`
`technology, Burrow-Giles Lithographic v. Sarony raised questions
`
`15 Lindsay v. Wrecked & Abandoned Vessel R.M.S. TITANIC, 1999 WL
`816163 at *4 (S.D.N.Y. Oct. 13, 1999).
`16 Id at *5.
`
`10
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 23 of 60
`
`around the copyrightability of photographs.17 In this context, a matter
`
`of “first impression” arose at the Supreme Court in a dispute regarding
`
`whether a photograph, as taken by a camera (i.e., a machine), was or
`
`was not a protectable “writing” or “production” of an “author” in
`
`accordance with the then-prevailing copyright law.18 At the time,
`
`photographs were not expressly considered as works of authorship.19
`
`The Burrow-Giles photograph-in-question—titled Oscar Wilde no.
`
`18—depicted Oscar Wilde posing in a scene specifically arranged and
`
`selected by a well-known photographer, plaintiff Napoleon Sarony. Mr.
`
`Sarony had accused defendant Burrow-Giles Lithographic of copyright
`
`infringement, claiming Burrow-Giles had used the photograph in
`
`unauthorized lithograph reproductions. There was no dispute that a
`
`human (Mr. Sarony) had operated a camera (a type of “machinery”) to
`
`take the photograph, but defendant Burrow-Giles argued that a
`
`17 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61 (1884).
`18 Id. at 56, 60.
`19 Id. at 58 (“The only reason why photographs were not included in the
`extended list in the act of 1802 is, probably, that they did not exist,
`as photography, as an art, was then unknown, and the scientific
`principle on which it rests, and the chemicals and machinery by
`which it is operated, have all been discovered long since that statute
`was enacted.”).
`
`11
`
`

`

`USCA Case #23-5233 Document #2037311 Filed: 01/25/2024 Page 24 of 60
`
`photograph could not be copyrighted because it was not authored by a
`
`“person,” i.e.: “a photograph being a reproduction, on paper …is not a
`
`writing of which the producer is the author.”20 Mr. Sarony countered
`
`that he was an “author” eligible for copyright protection by virtue of his
`
`contribution to the conception to arrange and select the scene for the
`
`photograph, arranging the costume, and determining the light and
`
`shade for the photograph.21
`
`The Supreme Court agreed with Mr. Sarony, finding that Mr.
`
`Sarony’s activities—arranging, selecting, and determining the scene for
`
`the photograph—gave rise to an original work of authorship pursuant
`
`to copyright law, even

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